NEW  JERSEY  EQUITY  REPORTS 

VOLUME   XV. 
McCARTER     II. 


REPORTS  OF  CASES 


ARGUED  AND  DPVTERMINED  IN  THE 


COURT  OF  CHANCERY, 


PREROGATIVE  COURT, 

AND,  ON  APPEAL,  IN  THE 

COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE  OF  NEW  JERSEY. 

HON.  HENEY  W.  GREEN,  CKANCELLOH  AN>,  OT^INA*?. 
THOMAS  N.  McCAETEE,  EEPOKTEU. 

VOLUME  II. 
SECOND     EDITION. 


WITH   REFERENCES  SHOWING  WHERE  THE  CASES  HAVE  BEEN  CITED,  AF- 
FIRMED, OVERRULED,  QUESTIONED,   LIMITED,   ETC.,  DOWN   TO   VOL. 
XL,    N.    J.    LAW    REPORTS    (XI    VROOM),    AND    VOL.    XXX, 
N.  J.  EQUITY  REPORTS   (ill  STEW.),  INCLUSIVE. 


By  John  Linn,  Esq.,  of  the  Hudson  Co.  Bar. 


•  JERSEY   CITY: 
FREDERICK  D.  LINN  &  CO. 

1886. 


NEW  JERSEY  REPORTS. 


LAW  REPORTS. 

COXES'  REPORTS,  1  vol. 

PENNINGTON'S  REPORTS,  -    2   " 

SOUTPIARD'S               "  2   " 

HALSTED'S                  "      -  -    7   " 

GREEN'S                       "  3   " 

HARRISON'S                "      -  4   "  . 

SPENCER'S                   "  1    " 

ZABRISKIE'S               "      -  -    4   " 

BUTCHER'S                 "  5   " 

VROOM'S  " 1    " 


EQUITY  REPORTS. 

SAXTON'S  REPORTS,  ]  vol 

GREEN'S  "  -  3   " 

HALSTED'S       "  4   " 

STOCKTON'S      "  3   " 

BEASLEY'S        " 2   " 

McCARTER'S     "  ...  -  2   « 


A    TABLE    OF    CASES 

REPORTED  IN  THIS  VOLUME. 


iijrss::  v.   >erry 
Atwater,  Walker  v 


B. 

Bacot,  Durantv  ........................................................................  411 

Ban  ta  v.  Moore  .................................  .  ..................  .......  ...........     97 

Banta  v.  Vreeland  ......................................................................  103 

Barnet  v.  Johnson  ............................................  ,  ........................  481 

Beatty's  executors  v.  Lalor  ...........................  ..............................  108 

Benedict  v.  Benedict  .................................................................  150 

Benson  v.  Woolverton  ...............................................................  158 

Bentley,  Manners  v  ...................................................................  501 

Berry,  Anderson  v  .....................................................................  232 

Blauvelt,  Moore's  executors  v  .....................................................  367 

Boston  Frauklinite  Company,  New  Jersey  Zinc  Company  v  ...............  418 

Boylan  v.  Meeker  .....................................................................  310 

Brokaw  v.  Peterson  ..................................................................  194 

Brown  v.  Brown  .......................................................................  499 

Brown,  McKibbin  v  ....................................................  ............  498 

Butler.  Muir  v  ..........................................................................  502 

O. 

Campion  v,  Kille  ................................................................  476,  500 

Cunfield,  Clarke's  executors  v  ......................................................  119 

Carpenter  v.  Muchmore  .............................................................  123 

Cheesman,  Turner  v  ........................  .......................................  243 

Clarke's  executors  v.  Canfield.  :.....  ............  .  ..................................  119 

Clement  v.  Kaighn  ...................................................................     47 

Congar  v.  Davis  ........................................................................  503 

(Vii) 


viii  TABLE  OF  CASES. 

Conover  v.  Walling 167 

Corlcs  v.  Lashley 116 

Craige,  Mallory's  administrator  v 73 

Cummins  v.  Cummins 138 

D. 

Davis,  Congar  v. 503 

Davis,  Stonington  Savings  Bank  v 30 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  R.  Go's  v.  Rar.  &  Del.  Bay  R.  R.  Co.      13 

Downing  v.  Risley 93 

Durant  v.  Bacot 411 

E. 
Emery  v.  Vansickel 144 

F. 

Farrell,  Hodgson  v 88 

First  Methodist  Protestant  Church  of  Newark,  \Vhitehead's  ex'rs  v..~  135 

French,  McDermott  v 78 

Fuller,  Kaign  v 501 

GK 

Garrison  Ann,  In  matter  of 393 

Garrison  v.  Garrison's  executors 266 

German  Evangelical  Dutch  Church  of  Newark  v.  Magie 500 

Gordon  v.  Torrey 112 

Graham,  Pancoast  v 294 

Green,  Morris  and  Essex  Railroad  Company  v 469 

H. 
Heath,  Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v...     22 

Hillyer  v.  Schenck 398,  501 

Hodgson  v.  Farrell 88 

Horton,  Stackhousev 202 

Howell  v.  Howell , 75 

I. 
In  matter  of  Ann  Garrison 393 

J. 
Jolinson,  Barnetv 4S1 


TABLE  OF  CASES.  ix 

K. 

Kaighn,  Clement  v 47 

KaighnV.  Fuller 501 

Kirrigan  v.  Kirrigan 145 

Kille,  Campion  v 476,  500 

Konkle,  Stoutenburgh  v , 33 

L. 

Lalor,  Beatty's  executors  v 108 

Lashley,  Corles  v 116 

Lewin,  Smallwood  v 60 

Letson,  Waldron  v 126 

M. 

Magie,  German  Evangelical  Church  of  Newark  v. 500 

Manners  v.  Bentley 501 

Mallory's  administrator  v.  Craige 73 

Mayor  and  Council  of  Newark,  Newark  Lime  and  Cement  Co.  v 64 

McChesney,  Smith  v 359 

McDermott  v.  French „ 78 

Meeker,  Boylan  v 310 

MeKibbin  v.  Brown 498 

Moore,  Banta  v 97 

Moore's  executors  v.  Blanvelt 367 

Morris  and  Essex  Railroad  Company  v.  Green 409 

Morris  v.  Morris 239 

Mount  v.  Mount 162 

Muchmore,  Carpenter  v 123 

Muirv.  Butler 502 

Mundy  v.  Mundy 290 

N. 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark 64 

New  Jersey  Zinc  Company  v.  Boston  Franklinite  Company 418 

Norris  v.  Thomson's  executors 493 

P. 

Pancoast  v.  Graham 294 

Peterson,  Brokaw  v -. 194 

Phillips,  Stevenson  v 236 


TABLE  OF  CASES. 


R. 

Rar.  &  Del.  Bay  R.  R.  Co.,  Del.  A  Rar.  Canal  and  C.  A  A.  R.  R.  Co's  v...  13 

Rinehart's  executorsv.  Rinehart 44 

Risley,  Downing  v 93 

S. 

Si-hump,  Youngblood  v 42 

Schenck,  Hillyer  v 398,  601 

Schoonmaker,  Van  Winkle  v ~ 384 

Skillman  v.  Skillman 388,  478 

Smallwood  v.  Lewin .. 60 

Smallwood,  Tomlinson  v 2S6 

Smith  v.  McChesney 359 

Stackhouse  v.  Horton .. 2<  2 

Stevenson  v.  Phillips 236 

Stonington  Savings  Bank  v.  Davis 30 

Stoutenburg  v.  Konkle 33 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath...    22 

T. 

Taylor,  Wardwell  v 499 

Terhune,  Winants  v 185 

Thomson's  executors,  Norris  v 493 

Tomlinson  v.  Smallwood 286 

Torrey,  Gordon  v 112 

Turner  v.  Cheesman 253 

V. 

Vanduyne  v.  Vanduyne 503 

Vansickel,  Emery  v 144 

Van  Winkle  v.  Schoonmaker 384 

Vreeland,  Banta  v 103 

W. 

Waldron  v.  Letson 126 

Walker  v.  Atwater .. 502 

Walling,  Conover  v 167 

Wardwell  v.  Taylor 499 

Warner,  Wood  v 81 

Whitehead's  ex'rs  v.  First  Methodist  Protestant  Church  of  Newark...  135 

Winanta  v.  Terhune 185 

Wood  v.Warner 81 

Woolverton,  Benson  v 158 

Y. 
Youngblood  v.  Schamp ~ 42 


A    TABLE    OF    CASES 

CITED  IN  THIS  VOLUME. 


Allen  v.  Cole 1  Stockt.  286 9t 

American  Fire  Ins.  v.  Pringle 2  Serg.  &  E.  138 114 

Andrews  v.  Parington.. 3  Bro.  C.  C.  60 242 

Anshutz's  Appeal 34  Penn.  St.  375 95 

A tt'y  General  v.  Morrison 7  Paige  157 43 

B. 

Back  v.  Andre 2  Vern.  120 80 

Bank  of  Orleans  v.  Skinner 9  Paige  305 43 

Billingby  v.  Cretcher 1  Bro.  Cli.  269 242 

Bodle  v.  Hulse 5  Wend.  313 46 

Bradley  v.  Bradley 4  Wharton  173 122 

Bradley  v.  TheW'gton  St.  Packet  Co.  13  Peters  89 466 

Brearley  v.  The  Del.  &  Ear.  Canal  Co.  Spencer,  236 475 

Bridge  Proprietors  v.  State 1  Zab.  384 71 

Brook  v.  Turner 2  Mod.  172 388 

Buckmaster  v.  Harrop 7  Ves.  341 95 

Burger  v.  Hill 1  Bradf.  Sur.  360 200 

Burrv.  Daval 8  Mod.  59 283 

Burr  v.  Sim 4  Wharton  150 122 

Butler  v.  Butler..... 3Atk.405 242 

C. 

Campbell  v.  Morrison 7  Paige  157 43 

Chaplin  v.  Chaplin 1  P.  W.  365 242 

Clark  v.  Haines 3  Gr.  Ch.  136 402 

Collier  v.  Collier 3  Ves.  33 242 

Colpoys  v.  Colpoys 1  Jacob's  Ch.  464 465 

Coxev.  Halsted". 1  Gr.  Ch.  311 125 

Cramer  v.  Morton 2  Molloy  108 45 

Crane  v.  Brigham 3  Stockt.  33 125 

Creed,  In  re 19  Eng.  L.  &  Eq.  19 120 

Crew  v.  King 2  Blk.  1211 »0 

Currie  v.  Buchan 1  Dowl.  &  Ky.  35.; 100 

(xi) 


xii  CASES  CITED. 


D. 

D'Aguilar  v.  D'Aguilar 1  Hagg.  773 143 

I>;i\i<  s  v.  Willians. 1  Sim. 5 45 

Davis  v.  Calvert 6  Gill  &  Johns.  302 3M 

Deare  v.  Carr 2  Gr.  Ch.  613 107 

De  Biemer  v.  Cantillon 4  Johns.  Ch.  85 133 

Delaplaine  v.  Lawrence 10  Paige  602 171 

Den  v.  Clark 1  Add.  274 229 

Den  v.  Hardenburg 5  Halst.  42 80 

Denny  v.  Barton 2  Phill.  575 3G3 

Diasv.  Glover 1  Hoff.  Ch.  76 80 

Doe  v.  Pannatt 5  Terra  654 80 

Durell  v.  Haley 1  Paige  492...... 39 

E. 

Eagle  v.  Emmett 4  Bradf.  Sur.  124 123 

Edwards  v.  Derrickson 4  Dutch.  39 114 

Elmer  v.  Bursen Penn.  187 58 

Executor  of  Hill  v.  Sinalley 1  Dutch.  374. 4o 

F. 

Fawcett  v.  Jones 3  Phill.  442,  1  Eng.  Eccl 201 

Fawknerv.  Fawkner 1  Atk.  405 242 

Ferguson  v.  Ferguson 3  Sanf.  (S.  C.)  307 163 

Fosdick  v.  Gooding 1  Greenl.  30 396 

Gr. 

Gerrard  v.  Gerrard 3  Phill.  444 201 

Gibbs  v.  Ougier 12Ves.  413 192 

Giles  v.Giles 8  Sim.  360 , 193 

Gordon  v.  Hobart.. 2  Story  343 32 

Gough  v.  Bell 2Zab.  441 489 

Grant  v.  Grant 1  Sandf.  Ch.  235 293 

Greenwood's  Case 13  Ves.,  jun.,  89 228 

H. 

Hall  v.  Warren 9  Ves.,  jun.,  610 283 

Harris  v.  Fly 7  Paige  421 "li 

Harrison  v.  Rowan 3  Wash.  C.  C.  587 252,  2oG 

Harvey  v.  Richards 1  Mason  381 101 

Heaths  v.  Watts Prerog.  1798 229 

Henfrey  v.  Henfrey... 2  Curtis  468 362 

Henley  v.  Phillips 2  Atk.  49 388 

JJ-rn  v.Hopkins. 13  Scrg.  &  R.  269 114 

riill  v.  Chapman 3  Bro.  C.  C.  231 242 

Hopkins  v.  Beebe 2  Casey  85 % 29 

Hunt  v.  Kearney Penn.  721 45 

J. 
Jackson  v.  Jai-kson  ..  ,.  1  Atk.  513....  ..242 


CASES  CITED.  xiii 

Jackson  v.  Stevens 16  Johns.  115 80 

Jarvis  v.  Pond 9  Sim.  549 198 

Jersey  v.  Smith 2  Brod.  &  Bing.  553 460 

Johnson  v.  Johnson 13  Wend.  637 163 

Johnston  v.  Darrah 6  Halst.  282 58 

K. 

Kelly  v.  Stanton 2  Younge  &  Jer.  77 45 

Kindeside  v.  Harrison 2  Phill.  449 309 

Knight  v.  Nepeau 5  Barn.  &  Ad.  96 120 

L. 

Lady  Shaftsbury's  Case Free,  in  Ch.  558 242 

Laird  v.  Wilson Penn.  281 398 

Le  Breton  v.  Fletcher 2  Hagg.  568 270 

Lounsberryv.  Purdy 16  Barb.  (S.'c.)  389 7.8 

Lowe  v.  Jollife 1  Win.  Blk.  365 270 

M. 

McCartee  v.  Camel 1  Barb.  Ch.  462 120 ' 

Mandeville  v.  Welch 5  Wheat.  277 28 

Mangham  v.  Mason 1  Ves.  &B 191 

Mann  v.  Ex'rs  of  Mann 1  Johns.  Ch.  231 109 

Marsh's  Ex'rs  v.  Oliver's  Ex'rs 1  McCart.  262 45 

Martin  v.  Teague '. 2  Spear  208 309 

Mecrayv.  Kichardson 3  Gr.  Ch.  139 402 

Menvin  v.  Smith 1  Gr.  Ch.  196 118 

Miller  v.  Wack Saxton  204 107 

Moody  v.  Moody Ambler  649.. 80 

Morris  Canal  v.  Inhab.  of  Jersey  City  1  Beas.  547 ...     69 

Mortimer  v.  Mortimer 2  Hagg.  310 143 

Mynn  v.  Robinson 2  Hagg.  169 369 

N. 

Nepeau  v.Doe 2  Mees.  &  W.  894 120 

Newark  L.  &  C.  Co.  v.  Morrison 2  Beas.  136 137 

Newman  v.  Jenkins 10  Pick.  515 - 123 

North  v.  North 5  Mass.320 163 

P. 

Page  v.  Page 8  N.  Hamp.  187 78 

Penn  v.  Lord  Baltimore 1  Ves.,  sen.,  444 84 

Pennock  v.  Hoover 5  Kawle  207 114 

People  v.  Lambier 5  Denio  9..  69 

Popkin  v.  Popkin 1  Hagg.  765 163 

Preston  v.  Lord  Melville 8  Clark  &  Fin.  1 .'. 101 

B. 

Kawlinson  v.  Shaw 3  Term  557 46 

Remsen  v.  Brinkerhoff. 26  Wend.  324,  339 293 


xiv  CASES  CITED. 


Remsen  v.  Remsen 2  Johns.  Ch.  501 32 

Roach  v.  Gawan 1  Ves.  168 242 

Rodgers  v.  Benson 5  Johns.  Ch.  437 80 

Runklev.  Gale - 3  Halst.  Ch.  106 ...  234 

Runnclls  v.  Jackson 1  Howard  (Miss.)  358 78 

S. 

Scott  v.  Scott... 1  Bay  504 397 

Shaw  v.  Hearsay ....  5  Mass.  521... 80 

Shawv.  Shaw 9  Ves.  288 242 

Small  v.  Small 4  Greenl.  223 369 

Smith  v.  Knowlton 11  N.  H.  196 123 

Spencer  v.  Roper 13  Iredell  333 120 

Stevens  v.  Vancleve 4  Wash.  C.  C.  2G7 256 

Stevenson,  Adm'r,  v.  Hart,  Ex'r 3  Halst.  Ch.  473 234 

Sunnier  v.  Williams 8  Mass.  176 464 

T. 

Taylor  v.  Stilbert 2  Ves.,  jun.,  439 96 

Thompson  v.  Brown 4  Johns.  Ch.  630,  643 74 

Thompson  v.  Graham 1  Paige  384 45 

Tieman  v.  Jackson 5  Peters  580 29 

Torrey  v.  Shaw 3  Ed w.  356 32 

Towart  v.  Sellers 5  Dow  231 300 

Trenton  Bk'g  Co.  v.  Woodruff. 1  Gr.  Ch.  117  107 

V. 

Van  Wert  v.  Benedict '...  1  Bradf.  121 363 

Vanalstine  v.  Hunter 2  Johns.  Ch.  148 256 

Vaughan  v.  Burford 3  Bradf.  78 294 

Vaughan  v.  Northup 15  Peters  1 101 

Voorhees  v.  Chaffees 4  Zab.  507 58 

W. 

Webster  v.  Berchraore.,.., 13  Ves.  363 123 

White  v.  Wilson 13  Ves.  87 268 

Whitenack  v.  Stryker 1  Gr.  Ch.  11 245 

Whitesides'  Appeal 23  Penn.  St.  114. 122 

Wilkes  v.  Rodgers 6  Johns.  571 242 

Williamson  v.  Williamson 1  Johns.  Ch.  488 143 

Wilson  v.  Hodges 2  East  313 121 

Wood  v.  Lee.; 5  Monroe  50 397 

Woods  v.  Monell 1  Johns.  Ch.  505 118 

Y. 

Yates  v.  Groves...,  ..  1  Ves.  280..  .  ,    27 


CASES 


ADJUDGED  IN 


THE  COURT  OF  CHANCERY 


OF  THE 


STATE  OF  NEW  JERSEY. 
MAY  TERM,  1862.* 


HENRY  W.  GREEN,  CHANCELLOR. 


THE  DELAWARE  AND  RARITAN  CANAL  AND  CAMDEN  AND 
AMBOY  RAILROAD  AND  TRANSPORTATION  COMPANIES  vs. 
THE  CAMDEN  AND  ATLANTIC  RAILROAD  COMPANY,  THE 
RARITAN  AND  DELAWARE  BAY  RAILROAD  COMPANY,  and 
others. 

The  complainants  have,  by  virtue  of  their  contract  with  the  state  of  New 
Jersey,  the  exclusive  franchise  of  transporting  passengers  and  freight, 
by  railway,  across  the  state,  between  the  cities  of  New  York  and  Phila- 
delphia, and  are  entitled  to  the  protection  of  a  court  of  equity  in  the  en- 
joyment of  that  franchise. 

The  incorporation  of  the  Camden  and  Atlantic  Railroad  Company  to  con- 
struct a  railroad  across  the  state  from  Camden  to  the  sea  and  the  incor- 
poration of  the  Karitan  and  Delaware  Bay  Railroad  Company  to  con- 
struct a  railroad  from  Earitan  bay  to  Cape  Island  were  no  violation,  on 
the  part  of  the  state,  of  its  contract  with  complainants. 

The  junction  of  these  two   railroads  at   their   necessary  and   legitimate 

*For  the  other  cases  decided  at  this  term,  see  Vol.  1,  page  320. 

VOL.  ii.  A  13. 


14  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  R.  Go's  v.  Rar.  &  Del.  Bay  R.  R.  Co. 

points  of  intersection,  so  as  to  form,  with  the  aid  of  steamboats  on  the 
Delaware  river  and  Raritan  bay,  a  continuous  line,  which,  by  possibil- 
ity, may  be  used  for  the  transportation  of  passengers  r."nd  merchandise 
across  the  state,  between  the  cities  of  New  York  and  Philadelphia,  con- 
stitutes no  violation  of  the  complainants'  rights. 

There  being  a  legitimate  purpose  for  what  these  roads  may  be  constructed 
and  used,  and  for  which  a  junction  between  them  may  be  formed,  the 
defendants  cannot  be  restrained  from  effecting  such  junction,  merely  Le- 
cause  it  may  be  perverted  to  an  unlawful  purpose. 

The  fact  that  either  of  said  roads,  or  the  connection  between  them,  is 
being  constructed  without  lawful  authority,  constitutes  no  ground  for 
equitable  relief  against  said  construction  at  the  instance  of  the  complain- 
ants, unless  their  rights  will  be  thereby  violated. 

The  answers  of  the  defendants  held  to  be  a  full  denial  of  the  equity  of  the 
complainants'  bill,  and  although  such  unauthorized  construction  and 
connection  of  the  roads  may  afford  evidence  of  a  fraudulent  design  to 
violate  the  rights  of  the  complainants,  it  is  not  sufficient,  on  a  motion 
for  a-preliminary  injunction,  to  overcome  the  answers  of  the  defendants. 

No  duties  imposed  upon  the  defendants  by  their  charters,  and  no  contract 
into  which  they  may  have  entered  with  third  persons,  or  witli  each 
other,  can  justify  any  violation  of  complainants'  rights,  or  afford  protec- 
tion against  the  consequences  of  such  violation. 


This  case  came  before  the  Chancellor  on  the  hearing  of  a 
rule  to  show  cause  why  a  preliminary  injunction  should  not 
be  granted  on  a  bill  filed  by  complainants,  by  which  they 
seek  to  be  protected  in  the  enjoyment  of  certain  franchises 
and  privileges  granted  to  them  by  the  state  of  New  Jersey. 

The  complainants  ask  that  an  injunction  should  issue  to 
prevent  the  formation,  by  the  defendants,  of  a  continuous  line 
of  conveyance  by  railroad  from  the  Delaware  river  to  Raritau 
bay,  by  a  junction  of  their  respective  roads,  which  might  be 
used  for  the  transportation  of  passengers  or  merchandise  be- 
tween the  cities  of  New  York  and  Philadelphia,  or  to  compete 
in  business  between  the  said  cities  with  the  railroads  of  the 
complainants,  or  that  might  in  any  manner  be  used  or  in- 
tended to  be  used  for  the  purpose  of  defeating  the  true  intent 
of  the  contracts  made  by  the  state  with  the  complainants,  to 
protect,  until  the  first  day  of  January,  1869,  the  business  of 
the  complainants'  railroad  from  competition  between  the  cities 
<af  New  York  and  Philadelphia. 


MAY  TERM,  1862.  15 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  E.  Co's  v.  Ear.  &  Del.  Bay  E.  E.  Co. 

The  exclusive  privileges  claimed  by  the  complainants  de- 
pend mainly  upon  the  acts  of  March  2d,  1832,  and  of  March 
16th,  1854.  By  the  second  section  of  the  act  of  1832,  it  is 
enacted,  "  that  it  shall  not  be  lawful,  at  any  time  during  the 
said  railroad  charter,  to  construct  any  other  railroad  or  rail- 
roads in  this  state,  without  the  consent  of  said  companies, 
which  shall  be  intended  or  used  for  the  transportation  of  pas- 
sengers or  merchandise  between  the  cities  of  New  York  and 
Philadelphia,  or  to  compete  in  business  with  the  railroad  au- 
thorized by  the  act  to  which  this  supplement  is  relative." 

By  the  preamble  of  the  act  of  1854,  it  is  recited,  that  by 
reason  of  existing  contracts  between  the  state  and  the  com- 
panies, as  set  forth  in  their  acts  of  incorporation  and  other  • 
acts  in  relation  to  the  said  companies,  they  are  possessed  of 
certain  exclusive  privileges,  which  prevent  the  construction, 
except  by  their  consent,  of  any  other  railroad  or  railroads  in 
this  state  which  shall  be  intended  or  used  for  the  transporta- 
tion of  passengers  or  merchandise  between  the  cities  of  New 
York  and  Philadelphia,  or  to  compete  in  business  with  the 
railroads  of  the  said  companies.  And  by  the  first  section  of 
the  act  it  is  enacted,  that  it  shall  not  be  lawful,  before  the 
1st  day  of  January,  1869,  to  construct  any  other  railroad  or 
railroads  in  this  state,  without  the  consent  of  the  said  joint 
companies,  which  shall  be  used  for  the  transportation  of  pas- 
sengers or  merchandise  between  the  cities  of  New  York  and 
Philadelphia,  or  to  compete  in  business  between  the  said  cities 
with  the  railroads  of  the  said  joint  companies,  or  that  may  in 
any  manner  be  used  or  intended  to  be  used  for  the  purpose  of 
defeating  the  true  intent  of  the  act  passed  March  the  2d, 
1832,  or  of  this  act,  which  intent  and  meaning  are  hereby 
declared  to  be  fully  and  effectually  to  protect,  until  the  1st 
day  of  January,  1869,  the  business  of  the  said  joint  compa- 
nies from  railroad  competition  between  the  cities  of  New 
York  and  Philadelphia. 

The  Camden  and  Atlantic  Railroad  Company,  one  of  the 
corporations  who  are  made  defendants,  by  virtue  of  their 
charter,  granted  on  the  17th  of  March,  1852,  have  constructed 


16  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  R.  Go's  v.  Rar.  &  Del.  Bay  R.  R.  Co. 

a  railroad  from  the  city  of  Canulen  through  the  counties  of 
Carnden  and  Atlantic,  a  distance  of  about  sixty  miles,  to  the 
ocean  at  Absecom  inlet,  in  the  county  of  Atlantic. 

The  Raritan  and  Delaware  Bay  Railroad  Company,  the 
other  defendant  corporation,  by  virtue  of  their  charter, 
granted  on  the  3d  of  March,  1854,  and  of  the  supplements 
thereto,  wore  authorized  to  construct  a  railroad  from  some 
suitable  point  on  Raritau  bay,  eastward  of  the  village  of  Key- 
port,  in  the  county  of  Monmouth,  through  the  counties  of  Mon- 
mouth,  Ocean,  Burlington,  Atlantic,  and  Cape  May,  to  Cape 
Island,  on  the  Atlantic  ocean ;  the  general  course  of  the  route 
of  the  road,  as  prescribed  in  the  charter,  being  nearly  paral- 
lel with  the  line  of  the  sea  coast,  and  in  its  direct  course  cross- 
ing the  Camden  and  Atlantic  railroad  nearly  forty  miles 
from  Philadelphia.  At  the  time  of  filing  the  complainants' 
bill  this  road  was  in  the  course  of  construction,  and  it  is  al- 
leged, in  the  bill,  that  the  company  are  not  constructing  their 
road  on  the  route  prescribed  by  their  charter,  but  that  the 
road  is  made  to  diverge  ten  miles  to  the  westward  of  the  direct 
route  to  May's  Landing,  one  of  the  points  in  the  prescribed 
route,  to  Atsion,  near  the  extreme  northwest  corner  of  the 
county  of  Atlantic,  for  the  purpose  of  approaching  nearer  to 
the  city  of  Philadelphia,  and  by  means  of  a  connection  with 
the  Camden  and  Atlantic  road,  formed  by  a  branch  road 
from  Atsion  to  Jackson,  forming  a  continuous  and  conve- 
nient railroad  line  to  Camden,  and  thereby  interfering  with 
the  chartered  rights  of  the  complainants.  It  is  not  sug- 
gested that  the  granting  of  these  charters,  or  either  of  them, 
by  the  legislature,  or  that  railroads  constructed  in  accord- 
ance with  the  route  prescribed  in  these  acts  of  incorpora- 
tion, constitute  any  violation  of  the  contract  made  by  the 
state  with  the  complainants ;  but  the  complaint  is,  that  the 
junction  thus  illegally  attempted  to  be  formed  between  the 
roads  of  the  defendants,  much  nearer  to  the  city  of  Philadel- 
phia than  was  contemplated  or  authorized  by  their  charters, 
will  open  a  communication  by  railroad  and  steamboat  be- 
tween the  cities  of  JS'ew  York  and  Philadelphia,  which  will 


MAY  TERM.  1862.  17 

Del.  &  Bar.  Canal  and  C.  &  A.  E.  E.  Co's  v.  Ear.  &  Del.  Bay  E.  E.  Co. 

compete    in    business  with   the   complainants'    railroad,  and 
thereby  infringe  their  chartered  rights. 

The  Camden  and  Atlantic  company,  by  their  answer,  al- 
leged that  they  were  authorized  to  construct  a  branch  road 
from  some  convenient  point  on  their  main  road,  to  be  deter- 
mined upon  by  the  company,  to  Batsto,  in  the  county  of 
Burlington;  that  they  located  their  branch  railroad  from 
Jackson  station,  on  the  main  line  of  their  road,  to  a  point 
near  Atsion  (which  branch  constitutes  the  connecting  link 
of  the  two  roads  of  the  defendants) ;  that  the  terminus  of  the 
Batsto  branch  at  Jackson  is  the  most  convenient  and  proper 
point  on  their  railroad  from  which  to  make  a  branch  solely 
for  a  local  road ;  that  it  is  the  most  practicable  route  for  the 
said  branch,  so  far  as  the  topography  of  the  country  is  con- 
cerned ;  and  that  the  branch  was  so  located,  because  it  was 
supposed  that  such  location  will  best  promote  the  interest  of 
the  stockholders  and  of  the  people  of  the  counties  through 
which  the  road  passes,  and  will  best  answer  the  design  of  the 
legislature  in  authorizing  such  branch.  They  admit  that  an 
additional  reason  for  thus  locating  the  Batsto  branch  through 
Atsion  was,  that  thereby  a  nearer  and  more  direct  communi- 
cation will  be  opened  between  Batsto  and  the  city  of  New 
York  and  points  in  the  line  of  the  Raritan  and  Delaware 
Bay  railroad.  They  do  not  admit,  nor  do  they  deny  that 
the  controlling  reason  for  that  location  of  the  Batsto  branch 
was  to  aid  the  Raritan  and  Delaware  Bay  Railroad  Com- 
pany in  their  purpose  of  approaching  nearer  to.  the  city, 
and  by  means  of  a  connection  with  the  Camden  and  Atlan- 
tic road,  forming  a  continuous  and  convenient  line  to  Cam- 
den. 

The  Raritan  and  Delaware  Bay  Railroad  Company,  and 
the  president  and  other  officers  of  the  company,  by  their 
answer,  among  other  things,  admit  that  at  the  time  of  ob- 
taining from  the  legislature  their  act  of  incorporation,  no 
person  interested  in  the  application  for  said  road  had  any 
intention  of  constructing  a  railroad  to  transport  passengers 
or  merchandise  between  the  cities  of  New  York  and  Phila- 


18  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  R.  Co's  ».  Rar.  A  Del.  Bay  R.  R.  Co. 

delphia.  They  admit  that  the  road,  as  constructed,  diverges 
about  ten  miles  from  the  direct  route  to  May's  Landing,  but 
say,  that  the  location  by  way  of  Atsion,  as  at  present  located, 
is  the  most  feasible,  expedient,  and  projKT  location  for  the 
railroad  contemplated  in  the  act  of  incorporation,  and  that 
the  direct  route  from  Squankum  to  May's  Landing  was  sur- 
veyed by  direction  of  the  company,  and  found  to  be  impractica- 
ble, and  that  the  terminus  of  the  Batsto  branch  (which  forms 
the  connecting  link  between  the  two  roads)  at  Jackson  is  the 
most  convenient  and  proper  point  on  the  Camden  and  Atlan- 
tic road  from  which  to  make  a  branch  solely  for  a  local  road. 
They  deny  that  any  agreement  has  been  made,  or  is  intended 
to  be  made,  for  the  transportation  of  freight  or  passengers 
between  the  cities  of  New  York  and  Philadelphia.  They 
admit  that  they  and  the  Camden  and  Atlantic  Railroad 
Company  have  in  view  the  construction  and  perfecting,  by 
means  of  their  respective  railroads  and  a  convenient  connec- 
tion between  them,  of  a  continuous  and  convenient  line  of  rail- 
way communication  across  New  Jersey,  from  the  city  of 
Camden  to  Port  Monmouth  ;  but  they  deny  that  they,  or  any 
of  them,  have  in  view  the  continuation  of  said  line,  at  either 
end  thereof,  by  steamboat  transportation  to  the  cities  of  New 
York  and  Philadelphia,  for  the  purpose  of  using  the  same 
for  the  transportation  of  passengers  or  merchandise  in  a 
manner  which  will  violate  any  contract  between  the  state  and 
the  complainants  or  any  provisions  of  the  acts  of  the  legisla- 
ture referred  to  in  the  complainants'  bill.  They  also  deny  that 
any  contract  or  arrangement  made  by  them  is  calculated  or 
intended  to  form  a  continuous  line  of  railway  communication 
between  the  said  cities  to  compete  in  business  with  the  busi- 
ness of  the  complainants  contrary  to  their  vested  rights.  They 
admit  that  it  is  possible,  if  not  prohibited  by  law,  that  a  line 
of  communication  by  railroad  and  steamboat  between  the 
cities  of  New  York  and  Philadelphia  might  be  opened  ;  but 
they  say  that  their  railroad  is  not  a  public  highway,  and  can- 
not so  be  used  without  their  concurrence  and  consent;  and  as 
they  have  made  no  arrangement  whatsoever  so  to  use  the 


MAY  TERM,  1862.  19 

Del.  &  Ear.  Canal  and  C.  &  A.  B.  K.  Go's  v.  Ear.  &  Del.  Bay  K.  E.  Co. 

same,  and  do  not  intend  any  unlawful  use  of  their  road,  such 
use,  if  unlawful,  cannot  be  made,  and  if  attempted,  can  be  re- 
strained by  the  courts.  They  also  deny  that  they  intend  in 
any  way  to  violate  the  chartered  rights  of  the  complainants, 
or  that  they  intend  during  their  existence  to  violate  any  of 
the  alleged  exclusive  privileges  of  the  complainants.  And  the 
defendants,  all  and  each  of  them,  declare  that  it  is  not  and 
never  has  been  their  intention,  by  the  construction  of  their 
railroad,  or.  its  connections  with  the  Camden  and  Atlantic 
railroad  or  otherwise,  to  interfere  with  the  complainants' 
chartered  rights  by  competing  with  the  railroad  of  the  com- 
plainants by  the  transportation  of  passengers  or  merchandise 
between  the  cities  of  New  York  and  Philadelphia  or  other- 
wise. 

The  answers  having  been  filed,  and  affidavits  taken  touch- 
ing certain  allegations  in  the  answers,  the  case  was  heard 
upon  a  motion  for  a  preliminary  injunction,  as  prayed  for  in 
the  bill,  to  restrain  the  defendants  from  forming  the  proposed 
junction  between  their  respective  roads.* 

J.  P.  Stockton  and  Bradley,  for  complainants. 
Williamson  and  Zabriskie,  for  defendants. 

THE  CHANCELLOR.  The  necessity  for  an  immediate  de- 
cision of  this  cause  has  allowed  no  opportunity  for  the  pre- 
paration of  an  extended  opinion.  But  the  thorough  research 
and  elaborate  arguments  of  counsel  (for  which  I  acknowledge 
my  indebtedness)  have  satisfied  me  as  to  the  principles  which 
must  be  recognized,  and  the  conclusions  which  must  be 
adopted  in  the  disposition  of  the  motion  now  before  the 
court.  Those  principles  and  conclusions  I  shall  therefore 
now  state,  without  any  attempt  to  present  in  detail  the  reasons 
upon  which  they  are  founded. 

1.  The  complainants  have,   by  virtue  of  their  contract 

*  See  the  same  case  reported  in  1  McCarter  445, 


20  CASES  IN  CHANCERY. 


Del.  &  Rar.  Canal  and  C.  &  A.  R.  R.  Co's  v.  Rar.  &  Del.  Bay  R  R  Co,     . 

with  the  state  of  New  Jersey,  the  exclusive  franchise  of 
transporting  passengers  and  freight  by  railway  across  the 
state,  between  the  cities  of  New  York  and  Philadelphia,  and 
are  entitled  to  the  protection  of  a  court  of  equity  in  the  en- 
joyment of  that  franchise. 

2.  There  is  no  sufficient  evidence  in  the  cause  that  the 
rights  which  the  complainants,  by  their  bill,  seek  to  main- 
tain have  been  impaired  or  relinquished  by  consent,  or  the 
complainants'  right  to  protection  forfeited  by  acquiescence  in 
the  acts  of  the  defendants. 

3.  The  incorporation  of  the  Camden  and  Atlantic  Railroad 
Company  to  construct  a  railroad  across  the  state  from  Cani- 
den  to  the  sea,  at  or  near  Absecom  inlet,  and  the  incorpora- 
tion of  the  Raritan  and  Delaware  Bay  Railroad  Company, 
to  construct  a  railroad  from  Raritan  bay  to  Cape  Island,  were 
no  violation  on  the  part  of  the  state  of  their  contract  with  the 
complainants. 

4.  The  junction  of  the  Camden  and  Atlantic  railroad  with 
the  Raritan  and  Delaware  Bay  railroad,  at  their  necessary 
and  legitimate  point  of  intersection,  so  as  to  form  a  continu- 
ous, though  circuitous  line  of  railway  from  Camden  to  the 
Raritan  bay,  and  which,  with  the  aid  of  steamboats  upon  the 
Delaware  river  and  Raritan  bay,  will  form  a  continuous  line, 
and  which  by  possibility  may  be  used  for  the  transportation 
of  passengers  and  merchandise  across  the  state,  between  the 
cities  of  New  York  and  Philadelphia,  constitutes  no  violation 
of  the  complainants'  rights. 

5.  There  is  a  legitimate  purpose  for  which  these  roads, 
thus  united,  may  be  used,  viz.,  the  transportation  of  freight 
and   passengers,  to  and  from  points  and   places  within  the 
state  of  New  Jersey,  along  the  line  of  the  respective  roads, 
and  between  those  points  and  the  cities  of  New  York  and 
Philadelphia  respectively. 

6.  There  being  a  legitimate  purpose  for  which  these  roads 
may  be  constructed  and  used,  and  for  which  a  junction  be- 
tween them  may  be  formed,  the  defendants  cannot  be  re- 


MAY  TERM,  1862.  21 

Del.  &  Ear.  Canal  an;l  C.  &  A.  E.  R.  Co's  v.  Ear.  &  Del.  Bay  E.  E.  Co. 

strained    from    effecting  such    a  junction  merely  because  it 
may  be  perverted  to  an  unlawful  purpose. 

7.  The  fact,  that  either  of  the  said  roads,  or  the  connect- 
ing link  between  them,  is  being  constructed  without  lawful 
authority,   either  because    no  survey  of  the  route  has  been 
filed  in  the  office  of  the  secretary  of  state,  or  because  it  is 
not  constructed  in    conformity  to    the    route   prescribed    by 
its  charter,  constitutes  no  ground  for  equitable  relief  against 
such  construction  at  the  instance  of  the  complainants,  unless 
their  rights  will  be  thereby  violated. 

8.  Such  unauthorized  construction  and  connection  of  the 
roads  may  afford  evidence  tending  to  show  a  fraudulent  de- 
sign, on  the  part  of  the  directors,   to  violate  the  rights  of 
the  complainants ;  but  it  is  not  sufficient,  upon  a  motion  for 
a  preliminary  injunction,  to  overcome  the  answers  of  the  de- 
fendants under  their  corporate  seals,  and  under  the  oaths  of 
their  officers,  who  are  made  defendants  for  the  purpose  of 
discovery. 

9.  Under  the  view  taken  by  the  court  of  the  true  con- 
struction to  be  given  to  the  contract  between  the  state  and 
the  complainants,  the  answer  of  the  defendants  is  a  full  de- 
nial of  the  equity  of  the  complainants'  bill,  and  renders  the 
allowance  of  an  injunction  before  the  final  hearing  improper. 

10.  If  the  roads  of  the  defendants,  by  means  of  the  contem- 
plated connection,  should  be  used  for  the  purpose  of  trans- 
porting passengers    or    merchandise    between    the    cities    of 
New  York  and  Philadelphia,  or  to  compete  in  business  with 
the  railroads  of  the  complainants  between  the  said  cities,  in 
violation  of  the  contract    between    the  state    and  the    com- 
plainants, full  and  adequate  protection  to  the  complainants' 
rights  can  be  given  by  injunction  restraining  such  use  of  the 
roads. 

11.  No  duties  imposed  upon  the  defendants,  in  the  prose- 
cution of  their  legitimate  business,  by  their  acts  of  incorpo- 
ration, and  no  contract  into  which   they  may  have   entered 
or  may  enter  with  third   persons   or  with   each   other,  can 


22  CASES  IN  CHANCERY. 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

justify  any  violation  of  the   rights  of  the  complainants  or 
afford  protection  against  the  consequences  of  such  violation. 

12.  The  state  is  no  party  to  this  suit.     Her  sovereignty 
cannot  be  trenched  upon,  nor  her  right  of  eminent  domain 
impaired  by  any  decision  in  this  cause,  nor  by  any  unauthor- 
ized or  illegal  acts  which  may  be  done  or  permitted  by  the 
defendants  under  color  of  her  authority. 

13.  If  the  roads  of  the  defendants,  by  means  of  the  con- 
nection that  may  be  made  between  them,  either  lawfully  or 
unlawfully,  shall  be  fraudulently  used  in  violation  or  eva- 
sion of  the  sovereign  rights  of  the  state,  she  has  the  power, 
and  is  fully  competent  to  guard  ^hose  rights. 

The  application  for  an  injunction  must  be  denied,  and  the 
rule  to  show  cause  discharged  with  costs. 
VIDE  decision  in  Same  v.  Same,  I  C.  E.  Or.  321. 


THE  SUPERINTENDENT  AND  TRUSTEES  OF  PUBLIC  SCHOOLS 
IN  TRENTON  vs.  SAMUEL  HEATH  and  others. 

On  a  bill  of  interpleader,  filed  by  the  complainants  against  several  claim- 
ants of  the  same  fund,  which  fund  consisted  of  a  debt  due  from  com- 
plainants to  a  contractor  on  a  building  contract,  and  the  object  of  the 
bill  was  to  settle  and  adjust  the  rights  of  the  several  claimants,  who  are 
creditors  of  the  contractor,  and  who  presented  three  classes  of  claims — 

1.  Those  which  are  for  labor  done  and  materials  furnished  in  the  erection 
of  the  building,  and  for  which  the  creditor  proceeded  to  secure  his  claim 
by  demand  and  notice  under  the  third  section  of  the  mechanics'  lien  law. 

2.  Claims  of  the  same  character  for  which  the  contractor  drew  orders  on  the 
complainants,  and  which  were  presented  to  complainants,  but  not  ac- 
cepted. 

3.  Claims  for  debts  due  from  the  contractor  other  than  for  work  done  and 
materials  furnished  in  the  erection  of  the  building,  and  for  which  the 
debtor  drew  orders  upon  complainants,  which  were  presented,  but  not 
accepted — 

Held,  that  the  first  class  of  claimants  must  be  paid  in  the  order  and  priority 
in  which  notice  of  the  demand  and  refusal  was  given  to  the  complain- 
ants. This  is  clearly  in  accordance  with  the  provisions  of  the  third  sec- 
tion of  the  lien  law,  which  gives  to  each  claimant  a  lien  on  the  amount 
due  from  the  owner  to  the  contractor  at  the  date  of  the  notice ;  and  it 


MAY  TERM,  1862.  23 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

would  seem  necessarily  to  give  priority  to  each  claimant  in  the  order  of 
time  in  which  his  notice  is  served,  and  excludes  the  idea  of  a  pro  rata 
division  of  the  fund  among  the  claimants. 

Claims  of  the  second  class  have  no  claim  on  the  fund  under  the  provisions 
of  the  third  section  of  the  lien  law.  The  statuory  remedy  must  be 
strictly  pursued.  The  statute  alters  the  existing  law  only  so  far  as  its 
terms  require.  It  cannot  be  extended  by  construction.  The  second  and 
third  class  of  claims  are  undistinguishable  in  principle,  and  stand  on  the 
same  legal  footing. 

The  orders  drawn  by  the  contractor  upon  the  fund  in  the  hands  of  the 
complainants,  and  presented  to  them,  though  not  accepted,  constituted 
an  equitable  assignment  pro  tanto  of  the  fund,  which  will  fix  the  fund  in 
the  hands  of  the  debtor,  and  will  be  protected  and  enforced  in  a  court  of 
equity. 

Most  American  courts  maintain  the  doctrine,  that  a  valid  assignment  can- 
not be  made  of  a  part  of  a  debt  without  the  assent  of  the  debtor,  which 
will  be  enforced  against  him  in  a  court  of  law.  But  it  has  no  applica- 
tion to  an  equitable  assignment  sought  to  be  enforced  in  a  court  of 
equity,  as  against  the  fund  in  the  hands  of  the  debtor  upon  whom  the 
order  is  drawn. 

\Vhen  the  debtor  has  come  voluntarily  into  a  court  of  equity  with  the 
fund,  and  leaves  the  claims  of  the  contesting  parties  to  be  settled  be- 
tween themselves,  it  does  not  lie  in  the  mouth  of  either  of  the  claimants 
to  raise  the  objection  against  the  assignment  of  part  only  of  the  debt. 
The  presumption  must  be  that  the  complainants  assented  to  a  subdivision 
of  the  debt. 

All  the  claimants,  as  well  those  whose  debts  were  not  on  account  of  the 
building  as  those  whose  debts  were  contracted  in  the  erection  of  the 
building,  are  entitled  to  be  paid  out  of  the  fund,  according  to  the  priority 
of  their  respective  orders  and  notices. 

The  parties  who  have  made  demand  and  given  notice  under  the  statute  are 
entitled  to  no  priority.  The  statute  confers  on  mechanics  and  material 
men  no  exclusive  or  superior  right  to  the  fund  in  the  hands  of  the 
owner.  Each  creditor  is  entitled  to  be  paid  in  the  order  in  which  his 
notice  or  order  was  presented  to  the  complainants. 


The  controversy  in  this  case  arose  out' of  the  erection  of  a 
public  school-house  in  the  city  of  Trenton.  The  complainants, 
for  whom  the  building  was  erected  by  contract  by  Henry  C. 
Scott,  were  indebted  to  him  in  the  sum  of  $632.40.  Conflict- 
ing claims  having  been  made  upon  the  complainants  by 
creditors  of  Scott,  amounting  to  about  $1150,  the  complain- 
ants paid  into  court  the  money  due  from  them  to  Scott,  and 
filed  a  bill  of  interpleader  against  the  claimants. 


24  CASES  IN  CHANCERY. 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

An  order  of  reference  was  made  to  a  master  to  ascertain 
and  report  the  amount  of  the  debt  due  to  Scott  from  the  com- 
plainants, and  the  respective  amounts  of  the  several  claims  cf 
the  defendants,  and  their  order  and  priority. 

The  case  was  heard  on  exceptions  to  the  master's  report. 

Beasley,  for  lien  claimants. 

E.  W.  Scudder,  for  Heath  and  others. 

An  order  by  the  debtor  in  favor  of  the  creditor  upon  the 
complainants,  and  notice  to  them  by  presentment,  is  an  appro- 
priation and  an  equitable  assignment  pro  tanto,  and  the  funds 
are  held  by  the  notice.  Watson  v.  Duke,  1  Russ.  &  M.  602, 
twte  1 ;  Burn  v.  Carvalho,  4  M.  &  C.  690 ;  Phillips  v.  Stagg, 
2  Edw.  Ch.  108;  Hawley  v.  Ross,  7  Paige  103;  Richard- 
son v.  Rust,  9  Ibid.  243 ;  Ex  parte  South,  3  Swanst.  343 ; 
Morton  v.  Naylor,  1  Hill  583,  note  a,  585 ;  Wheeler  v.  Wheeler, 
9  Cowen  34 ;  Pattison  v.  Hull,  Ibid.  747 ;  Field  v.  Major,  2 
Selden  179  ;  3  Lead.  Cos.  in  Eq.  308,  354-5. 

There  is  a  distinction  at  law  between  a  partial  and  entire 
assignment.  5  Wheaton  283 ;  1  Ibid.  2-i5  ;  5  Pet.  598. 

Contra  to  above  cases,  Quinn  v.  Hanford,  1  Hill  82 ;  Luff 
v.  Pope,  5  Ibid.  413. 

THE  CHANCELLOR.  The  complainants  being  indebted  to 
Henry  C.  Scott,  upon  a  building  contract  for  the  erection  of 
a  public  school-house  in  the  city  of  Trenton,  and  there  being 
a  variety  of  conflicting  claims,  legal  and  equitable,  to  portions 
of  said  fund,  exceeding  in  the  aggregate  the  amount  of  their 
indebtedness,  the  complainants  filed  a  bill  of  interpleader,  and 
paid  the  fund  into  court,  in  order  that  the  rights  of  the  several 
claimants  might  be  adjusted  and  settled. 

By  the  master's  report,  it  appears  that  the  amount  paid 
into  court  by  the  complainants,  $632.40,  is  the  whole  amount 
of  the  indebtedness  from  the  complainants  to  Scott  upon  the 
building  contract. 

There  are  a  large  number  of  small  claims  upon  the  fund, 


MAY  TERM,  1862.  25 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

amounting  together  to  about  $1150.  Scott,  the  contractor, 
is  insolvent.  A  large  portion  of  the  indebtedness  must  be 
lost.  The  question  is  upon  whom  the  loss  must  fall.  The 
claims  are  all  made  by  creditors  of  Scott,  the  contractor,  and 
consist  of  three  classes. 

1.  Those  which  are  for  work  and  labor  done  and  mate- 
rials furnished  in  the  erection  and  construction  of  the  said 

•building,  and  for  which  the  creditor  proceeded  to  secure  his 
claim  by  demand  and  notice  under  the  third  section  of  the 
mechanics'  lien  law.  Nix.  Dig.  524. 

2.  Claims  of  the  same  character,  for  which  the  contractor 
drew  orders  upon  the  complainants,  which  were  presented  to 
the  superintendent  of  schools,  but  were  not  accepted  by  the 
complainants. 

3.  Claims  for  debts  due  from  the  contractor,  other  than  for 
work  done  and  materials  furnished  in  the  erection  and  con- 
struction of  said  building,  and  for  which  the  debtor  drew 
orders  upon  the  complainants,  which  were  presented  to  the 
superintendent,  but  not  formally  accepted. 

The  master  has  reported  in  favor  of  the  first  class  of 
claimants  to  be  paid  in  the  order  and  priority  in  which  notice 
of  the  demand  and  refusal  was  given  to  the  superintendent. 
To  this  part  of  the  report  there  is  no  exception.  It  is 
clearly  in  accordance  with  the  provisions  of  the  third  section 
of  the  mechanics'  lien  law.  The  third  section  of  that  statute, 
whatever  the  design  of  the  framers  may  have  been,  gives  to 
each  claimant  a  lien  upon  the  amount  due  from  the  owner  to 
the  contractor  at  the  date  of  the  notice ;  and  it  would  seem 
necessarily  to  give  priority  to  each  claimant  in  the  order  of 
time  in  which  his  notice  is  served,  and  excludes  the  idea  of 
a  pro  rata  division  of  the  fund  among  the  claimants. 

The  master  has  also  reported  that  the  claims  included  in 
the  second  class  are  entitled  to  be  paid  in  like  order  and 
priority,  and  has  excluded  the  claims  in  the  third  class. 
The  report  in  each  of  these  particulars  is  excepted  to.  It  is 
insisted,  on  the  one  hand,  that  the  master  erred  in  distin- 
guishing between  these  classes  of  cases,  and  that  both  classes 


26  CASES  IN  CHANCERY. 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.. Heath. 

of  claims  should  have  been  rejected,  and  on  the  other  hand 
that  both  should  have  been  allowed. 

There  would  seem,  at  first  view,  to  be  sound  reason  for 
the  distinction;  and  looking  to  the  policy  of  the  statute, 
which  gives  to  the  journeyman,  laborer,  and  material  man, 
after  a  refusal  by  the  contractor  to  pay  his  debt,  and  notice 
to  the  owner  of  the  demand  and  refusal,  a  claim  upon  the 
amount  due  from  the  owner  to  the  contractor,  that  he  should* 
have  at  least  an  equally  strong  claim  in  case  the  indebted- 
ness is  admitted  by  the  contractor,  and  an  order  given  upon 
the  builder  to  pay  the  amount.  It  must  be  borne  in  mind, 
however,  that  the  statutory  remedy  must  be  strictly  pur- 
sued ;  that  the  statute  alters  the  existing  law  so  far,  and  no 
further  than  its  terms  require,  and  that  it  cannot  be  ex- 
tended by  construction.  Whatever  seeming  justice  there 
may  be,  therefore,  in  admitting  the  validity  of  the  claim  in 
this  aspect,  it  is  not  warranted  by  the  statute,  and  would  be 
as  inconsistent  with  i  s  terms  as  a  division  of  the  fund 
among  all  the  claimants  pro  rata  upon  the  ground  that  stick 
division  would  conform  more  strictly  to  the  general  policy  of 
the  act. 

I  think  the  second  and  third  class  of  claims  are  undistin- 
guishable  in  principle,  and  both  stand  upon  the  same  legal 
footing.  Both  must  be  admitted  or  both  rejected. 

Before  considering  these  exceptions,  it  is  proper  to  pre- 
mise that  this  suit  has  been  amicably  conducted;  that  no 
technical  or  formal  objections  have  been  suggested  or  relied 
upon,  and  that  the  sole  design  of  the  parties  has  been  to  pre- 
sent for  consideration  the  simple  inquiry,  to  whom,  and  in 
what  order  and  priority,  the  fund  should  be  paid. 

The  only  inquiry  therefore  is,  whether  the  orders  drawn 
by  the  contractor  upon  the  fund  in  the  hands  of  the  com- 
plainants, and  presented  to  the  superintendent,  though  not 
accepted  by  him,  constituted  an  equitable  assignment  pro 
tanto  of  the  fund. 

I  present  the  question  in  this  form,  because  it  is  quite 
clear  that  if  there  was  an  express  acceptance,  written  or  oral, 


MAY  TERM,  1862. 


27 


Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

of  the  order  by  the  complainants  the  case  would  be  free 
from  all  doubt,  and  because  there  is,  to  my  mind,  no  satis- 
factory evidence  in  the  case  that  any  of  these  orders  were 
accepted  by  the  complainants.  Some  of  the  claimants  do 
indeed  testify  that  their  orders  were  accepted  by  the  super- 
intendent, and  that  he  promised  to  pay  them.  But  this  is 
expressly  contradicted  by  the  superintendent,  who  denies 
,,that  he  ever  accepted  or  promised  to  pay  any  of  the  orders. 
He  simply  stated  that  there  was  a  debt  due  from  the  com- 
plainants to  the  contractor,  and  permitted  the  parties  to 
leave  the  orders  with  him.  In  this  he  is  confirmed  by  a 
number  of  the  parties  while  testifying  in  their  own  behalf. 
I  am  the  more  confirmed  in  this  view  of  the  evidence  from 
the  fact  that  the  superintendent  had .  not  authority  either  to 
accept  the  orders  or  to  promise  to  pay  them.  He  could  not, 
without  express  authority  for  that  purpose,  thus  bind  the 
corporation.  The  cuse  will  be  regarded,  therefore,  as  if 
there  was  no  acceptance  by  the  complainants  or  promise  on 
their  part  to  pay  any  of  the  orders. 

The  simple  inquiry  then  is,  whether  an  order  by  the  cred- 
itor, drawn  upon  and  presented  to  his  debtor  to  pay  a  sum 
of  money  out  of  a  specified  fund,  constitutes  in  favor  of  the 
payee  an  equitable  assignment  of  the  debt,  which  will  fix  the 
fund  in  the  hands  of  the  debtor,  and  which  will  be  protected 
and  enforced  in  a  court  of  equity.  It  does  not  appear  to 
me  that  the  question  admits  of  a  doubt. 

In  Yates  v.  Groves,  1  Vesey  280,  one  Dawson,  being  in- 
debted to  the  plaintiff,  drew  his  order  upon  Groves  and 
Dickinson,  in  favor  of  the  plaintiff,  to  pay  the  amount  due 
out  of  the  fund  of  Dawson  in  the  hands  of  Groves  and  Dick- 
inson. Dawson,  having  become  bankrupt,  the  entire  fund 
in  the  hands  of  Groves  and  Dickinson  was  claimed  by  the 
assignee  in  bankruptcy.  Upon  a  bill  filed  for  the  recovery 
of  the  amount  covered  by  the  order,  Lord  Thurlow  said : 
"  This  is  nothing  but  a  direction  by  a  man  to  pay  part  of 
his  money  to  another  for  a  foregone  valuable  consideration. 
If  he  could  transfer,  he  has  done  it,  and  it  being  his  own 


28  CASES  IN  CHANCERY. 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  r.  Heath. 

money,  he  could  transfer.  The  transfer  was  actually  made. 
They  were  in  the  right  not  to  accept,  as  it  was  not  a  bill  of 
exchange.  It  was  not  an  inchoate  business.  The  order 
fixed  the  money  the  moment  it  was  shown  to  Groves  and 
Dickinson." 

The  principle  is  thus  stated  by  Mr.  Justice  Story  :  "  If  a 
draft  or  order  is  drawn  on  a  debtor  for  a  part  or  the  whole 
of  the  funds  of  the  drawer  in  his  hands,  such  a  draft  does 
not  entitle  the  holder  to  maintain  a  suit  at  law  against  the 
drawee,  except  the  latter  assent  to  accept  or  pay  the  draft." 
"  But  the  transaction  will  have  a  very  different  operation  in 
equity.  Thus,  for  instance,  if  A.,  having  a  debt  due  to  him 
from  B.,  should  order  it  to  be  paid  to  C.,  the  order  would 
amount  in  equity  to  an  assignment  of  the  debt,  and  would 
be  enforced  in  equity,  although  the  debtor  had  not  assented 
thereto.  The  same  principle  would  apply  to  the  case  of 'an 
assignment  of  a  part  of  such  debt.  In  such  case  a  trust 
would  be  created  in  favor  of  the  equitable  assignee  on  the 
fund,  and  would  constitute  an  equitable  lien  upon  it."  2 
Story's  Eq.  Jur.,  §  1043-4. 

The  authorities  in  support  of  the  principle  are  very  nu- 
merous ;  nor,  so  far  as  it  applies  to  an  order  for  the  payment 
of  the  entire  debt,  does  there  seem  to  be  any  conflict  in  the 
authorities. 

In  Mandeville  v.  Welch,  5  Wheat.  277,  Mr.  Justice  Story 
himself  says,  in  apparent  contradiction  to  the  text  of  his 
treatise  just  cited  :  "In  cases  where  the  order  is  drawn  on 
Vie  whole  of  a  particular  fund,  it  amounts  to  an  equitable  as- 
signment of  that  fund,  and  after  notice  to  the  drawee  it 
binds  the  fund  in  his  hand.  But  where  an  order  is  drawn, 
either  on  a  general  or  a  particular  fund,  for  a  part  only,  it 
does  not  amount  to  an  assignment  of  that  part,  or  give  a 
lien  as  against  the  drawee,  unless  he  consent  to  the  appro- 
priation by  an  acceptance  of  the  draft :  or  an  obligation 
may  be  fairly'  implied  from  the  custom  of  trade,  or  the 
course  of  business  between  the  parties,  as  a  part  of  their 
contract.  The  reason  of  the  principle  is  plain — a  creditor 


MAY  TERM,  1862.  29 

Superintendent  and  Trustees  of  Public  Schools  in  Trenton  v.  Heath. 

shall  not  be  permitted  to  split  up  a  single  cause  of  action 
into  many  actions  without  the  assent  of  the  debtor,  since  it 
may  subject  him  to  many  embarrassments  and  responsibili- 
ties not  contemplated  in  his  original  contract.  He  has  a 
right  to  stand  upon  the  singleness  of  his  original  contract, 
and  to  decline  any  legal  or  equitable  assignments  by  which 
it  may  be  broken  into  fragments.  When  he  undertakes  to 
pay  an  integral  sum  to  his  creditor,  it  is  no  part  of  his  con- 
tract that  he  should  be  obliged  to  pay  in  fractions  to  any 
other  persons;  so  that  if  the  plaintiff  could  show  a  partial 
assignment  to  the  extent  of  the  bills,  it  would  not  avail  him 
in  support  of  the  present  suit."  That  suit  was  an  action  at 
law  by  the  drawer  of  the  order  for  the  use  of  the  payee 
against  the  debtor  upon  whom  the  order  was  drawn.  All 
this  reasoning  applies  to  such  an  action.  It  presents  most 
clearly  and  forcibly  the  ground  of  the  doctrine  maintained 
by  most  of  the  American  courts,  that  a  valid  assignment 
cannot  be  made  of  part  of  a  debt  without  the  assent  of  the 
lebtor  which  will  be  enforced  against  him  in  a  court  of  law. 
But  it  has  no  application  whatever  to  an  equitable  assign- 
ment, sought  to  be  enforced  in  a  court  of  equity  as  against 
the  fund  in  the  hands  of  the  debtor  upon  whom  the  order  is 
drawn. 

In  Tieman  v.  Jackson  (5  Peters  .580),  which  was  also  an 
action  at  law  brought  in  the  name  of  the  payee,  the  point 
mainly  discussed  and  decided  was,  whether  the  evidence 
showed  such  a  legal  right  in  the  plaintiff  that  the  action 
would  lie  in  his  name;  and  Mr.  Justice  Story,  in  alluding 
to  his  opinion  in  Mandemlle  v.  Welch,  said,  that  the  suit 
was  there  brought  in  the  name  of  the  original  assignor  for 
the  use  of  the  assignee  against  the  debtor,  and  it  was  unne- 
cessary to  consider  whether  the  remedy,  if  any,  was  at  law  or 
in  equity. 

The  same  principle  is  maintained  in  Hopkins  v.  Beebe,  2 
Casey  85,  where  the  question  arose  under  similar  circum- 
stances. 

But  whatever  difficulty,  either  at  law  or  in  equity,  this 

VOL.  ii.  B 


30  CASES  IX  CHANCERY. 

Stonington  Savings  Bank  v.  Davia. 

objection  might  present,  in  an  action  brought  by  the  as- 
signee of  a  part  of  the  debt  against  the  debtor,  where  (here 
had  been  no  presentment  or  acceptance  of  the  order,  it  can 
have  no  force  in  the  present  case.  Here  the  debtor  has 
come  voluntarily  into  court  with  the  fund,  and  leaves  the 
equitable  claims  of  the  contesting  parties  to  be  settled  be- 
tween themselves,  according  to  the  principles  and  practice 
of  a  court  of  equity.  It  does  not  lie  in  the  mouth  of  either 
of  the  claimants  to  raise  the  objection.  The  presumption 
must  be  that  the  complainants  assented  to  a  subdivision  of 
the  debt,  whatever  their  original  contract  may  have  im- 
ported. 

All  the  claimants,  as  well  those  whose  debts  were  not  for 
materials,  or  work  and  labor  furnished  or  done  in  the  erec- 
tion of  the  building,  as  those  whose  debts  were  on  account  of 
the  building,  are  entitled  to  be  paid  out  of  the  fund  accord- 
ing to  the  priority  of  their  respective  orders.  The  parties 
who  have  made  demand  and  given  notice  under  the  statute 
are  entitled  to  no  priority.  The  statute  confers  upon  the 
mechanics  and  material  men  no  exclusive  or  superior  right 
to  the  fund  in  the  hands  of  the  owner.  Each  creditor  is  en- 
titled to  be  paid  in  the  order  in  which  his  notice  or  order 
was  presented  to  the  complainants. 

The  master's  report  must  be  corrected  accordingly. 


THE  STOXINGTON  SAVINGS  BANK  vs.  DAVIS  and  others. 

In  a  suit  for  the  foreclosure  of  a  mortgage,  which  contained  an  agreement 
that  the  mortgagor  should  keep  the  buildings  insured,  and  assign  the 
policy  to  the  mortgagees,  and  in  default  of  so  doing,  the  mortgagees 
might  effect  such  insurance,  and  that  the  premium  paid  thereon  should 
be  a  lien  on  the  mortgaged  premises,  and  added  to  the  amount  secured 
by  the  mortgage  and  payable  on  demand  with  interest,  an  order  of  re- 
ference was  made  to  a  master  to  take  an  account  of  the  amount  due  to 
complainants.  The  master  reported,  allowing,  in  addition  to  the 
amount  due  on  the  mortgage,  a  sum  of  money  due  for  premiums  paid  by 


MAY  TERM,  1862.  31 

Stonington  Savings  Bank  t>.  Davis. 

the  mortgagees  on  effecting  insurances  on  the  buildings. — On  exceptions 
to  the  master's  report,  it  was  held,  that  the  amount  so  allowed  for  in- 
surance was  not  within  the  cognizance  of  the  master.  The  master's  au- 
thority, as  to  the  subjects  and  extent  of  his  examination  and  report,  is 
limited  and  controlled  by  the  order  of  reference. 

The  order  of  reference  in  this  case  is  in  the  usual  form,  directing  the  master 
to  take  an  account  of  the  amount  due  to  the  complainants  upon  their 
bond  and  mortgage.  The  sum  paid  for  insurance  is  no  part  of  the 
amount  due  on  the  bond  and  mortgage. 

When  neither  the  complainants'  right  to  insure,  nor  the  fact  of  the  insur- 
ance is  averred  in  the  bill,  and  no  relief  is  prayed  on  that  account,  the 
amount  paid  for  insurance  should  not  be  allowed,  although,  by  a  liberal 
construction  of  the  order  of  reference,  it  might  be  deemed  within  the 
cognizance  of  the  master. 

This  case  came  before  the  court  on  exceptions  to  the 
master's  report,  made  on  an  order  o"f  reference  in  pursuance 
of  an  interlocutory  decree  in  the  principal  case,  which  is  re- 
ported in  Vol.  I,  p.  286. 

Ransom,  for  defendant,  in  support  of  the  exceptions. 
Gilchrist,  for  complainant,  contra. 

THE  CHANCELLOR.  The  first  exception  is,  that  the  master 
has  charged  the  exceptant  with  $24.98,  insurance  premiums, 
alleged  to  have  been  paid  for  insuring  the  buildings  upon 
the  mortgaged  premises.  The  bill  is  for  foreclosure.  The 
mortgage  which  is  sought  to  be  foreclosed,  besides  the  usual 
clauses,  contains  an  agreement  between  the  parties  that  the 
mortgagor  should  keep  the  buildings  upon  the  premises  in- 
sured against  loss  or  damage  by  fire  in  an  amount  approved 
by  the  mortgagees,  and  assign  the  policy  to  them ;  and  in 
default  thereof,  that  the  mortgagees  might  effect  such  insur- 
ance, and  that  the  premiums  paid  for  effecting  the  same 
should  be  a  lien  on  the  mortgaged  premises,  added  to  the 
amount  of  the  bond,  and  secured  by  the  mortgage  payable 
on  demand,  with  interest. 

The  matter  excepted  to  was  not  within  the  cognizance  of 
the  master.  The  master's  authority,  as  to  the  subjects  and 


32  CASES  IN  CHANCERY. 

Stonington  Savings  Bank  >:  Davis. 

extent  of  his  examination  and  report,  is  limited  and  control- 
led by  the  order  of  reference.  Gordon  v.  Jfobart,  2  Story's 
R.  260 ;  Remsen  v.  Remsen,  2  J.  C.  R.  501 ;  Harris  v.  Fly, 
7  Paige  421 ;  Torrey  v.  Shaw,  3  Edwards  356. 

The  order  in  this  case  is  in  the  usual  form,  directing  the 
master  to  take  an  account  of  the  amount  due  to  the  com- 
plainants upon  their  bond  and  mortgage.  The  sum  paid  for 
insurance  is  strictly  no  part  of  the  amount  due  on  the  bond 
and  mortgage.  By  the  terms  of  the  agreement,  it  is  to  be  a 
)ien  on  the  mortgaged  premises,  and  to  be  added  to  the 
amount  due  on  the  bond,  and  secured  by  the  mortgage. 

If,  by  a  liberal  construction  of  the  terms  of  the  order,  this 
subject  might  be  deemed  within  the  cognizance  of  the  master, 
there  is  a  more  fatal  objection  to  the  report  in  this  particu- 
lar. It  appears,  by  the  master's  report,  that  part  of  the 
money  advanced  by  the  complainants  for  insurance  was  paid 
before  the  filing  of  the  bill  of  complaint. 

The  bill  contains  no  averment  whatever  that  any  premium 
for  insurance  had  been  paid  by  the  complainants,  or  that 
the  defendant  had  failed  to  insure.  For  all  that  appears, 
the  mortgagor  may  have  fully  insured  the  buildings  upon 
tlie  premises,  and  assigned  the  policy  to  the  complainants. 
Neither  the  complainants'  right  to  insure  nor  the  fact  of  in- 
surance is  averred  in  the  bill,  or  put  in  issue  by  the  plead- 
ings, nor  is  any  relief  prayed  in  regard  to  it.  In  Gordon  v. 
Hobart,  2  Story's  R.  343,  where  waste  was  not  charged  in 
the  bill,  and  no  authority  to  examine  that  question  had  been 
given  to  the  master  in  the  order  of  reference,  but  the  master, 
with  the  consent  of  the  parties,  had  examined  and  reported 
upon  the  question  of  waste,  it  was  held,  by  Justice  Story, 
that  such  consent  gave  the  master  no  jurisdiction,  and  that 
the  whole  proceedings  as  to  the  waste  were  irregular  and 
coram  non  judice.  The  claim  of  the  complainants  for  the 
amount  paid  for  insurance  is  probably  just,  and  I  regret  to 
disturb  the  report  upon  a  ground  that  may  savor  of  techni- 
cality ;  but  so  clear  a  principle  cannot  be  violated  with  im- 


MAY  TERM,  1862.  S3 

Stoutenburgh  v.  Konkle. 

punity  without  danger  of  the  total  subversion  of  all  correct 
practice. 

The  second  exception  is,  that  the  master  allowed  the  com- 
plainants a  larger  amount  for  taxes  than  ought  to  have  beec 
allowed. 

This  exception  is  not  sustained.  It  was  not  insisted  on  by 
the  exceptant  at  the  hearing. 

The  first  exception  is  allowed.  The  report  will  be  cor- 
rected accordingly,  by  striking  from  the  amount  reported  to 
be  due  to  the  complainants  the  amount  paid  for  insurance. 
The  order  will  be  made  without  costs  on  either  side. 

CITED  in  Wycoff  v.  Combs,  1  Stew.  41. 


ROBERT  C.  STOUTENBOURGH,  ELIHU  DAY,  and  JOHN  H. 
REOCK  vs.  JACOB  D.  KONKLE  and  others. 

On  a  bill,  filed  by  a  judgment  creditor  against  the  debtor  and  other  prior 
judgment  creditors  of  the  same  debtor,  alleging  that  the  debt  for  which 
complainants'  judgment  was  entered  was  fraudulently  contracted  by  the 
debtor,  in  purchasing  goods  of  complainant  with  intent  to  subject  them 
to  the  lien  of  the  execution  of  the  defendant's  relatives  having  claims 
against  him,  and  claiming  that  complainant  is  entitled  to  have  the  arti- 
cles so  purchased  specifically  applied  to  the  satisfaction  of  his  judgment, 
it  was  held — 

That  complainant's  case  must  rest  upon  the  ground  of  fraud  in  the  pur- 
chase of  the  articles  from  complainants  which  vitiated  the  contract,  and 
prevented  any  change  in  the  ownership  of  the  chattels;  and  that  to  sus- 
tain the  case  upon  this  ground,  the  articles  must  have  been  purchased 
with  the  purpose  of  defrauding  the  complainant,  or  the  credit  must  have 
been  obtained  by  false  and  fraudulent  representations  of  material  facts 
calculated  to  mislead  the  complainant,  and  upon  which  he  acted  in  the 
sale  of  the 'goods. 

If  the  debtor  purchased  the  goods  of  complainant  with  the  fraudulent  de- 
sign of  subjecting  them  to  the  executions  of  his  near  relations  and  other 
friends  having  claims  against  him,  however  just,  it  affords  a  clear  case 
for  equitable  relief. 

A  purchaser  gains  no  title,  and  acquires  no  right  of  retaining  goods,  if  he 
obtain  possession  by  gross  fraud  under  color  of  purchase,  whether  on 
credit  or  otherwise. 

When  goods  are  sold  for  cash  on  delivery,  if  the  purchaser,  on  delivery  of 


34  CASES  IN  CHANCERY. 

Stoutcnburgh  r.  Konkle. 

the  goods  and  demand  of  payment,  refuses  to  pay  the  purchase  money, 
it  is  competent  for  the  vendor  at  once  to  reclaim  the  goods,  and  seek  the 
protection  of  a  court  of  equity  against  judgment  creditors  of  the  vendee. 
In  such  a  case  no  title  passes.  The  condition  of  the  sale  is  violated. 

If  an  insolvent  purchaser,  concealing  his  insolvency  from  the  vendor,  pro- 
cures goods  without  intending  to  pay  for  them,  the  property  in  the  goods 
will  not  be  changed. 

When,  however,  the  vendor  does  not  disaffirm  the  contract  and  reclaim  the 
goods  as  his  own,  but  on  the  failure  and  absconding  of  the  vendee, 
issues  an  attachment  against  him  for  the  debt,  and  afterwards  obtains 
judgment  by  confession  against  him,  and  seeks  to  enforce  the  judgment 
by  claiming  an  equitable  lien  on  the  goods  sold,  that  is  an  affirmance  of 
the  contract,  and  there  is  no  principle  on  which  the  complainant  is  enti- 
tled to  that  relief  against  prior  judgment  creditors  of  the  vendee  when 
executions  have  been  levied  on  the  goods. 


On  filing  the  bill  in  this  cause,  a  rule  was  granted  that 
defendants  show  cause  why  an  injunction  should  not  issue 
according  to  the  prayer  thereof. 

Runyon,  for  complainant,  cited  HUliard  an  Sales  328, 
di.  20. 

Linn,  for  defendants,  cited  Stale  v.  Vanderbilt,  3  Dutcher 
328. 

THE  CHANCELLOR.  The  complainants  are  dealers  in  house- 
hold furnishing  articles  in  the  city  of  Newark.  At  the  time 
of  the  transactions  complained  of,  Jacob  D.  Konkle  was 
lessee  for  years  of  the  City  Hotel  in  said  city.  Between 
the  twenty-second  day  of  March  last  and  the  nineteenth  day 
of  May,  inclusive,  they  sold  to  said  Konkle,  one  of  the  de- 
fendants, a  bill  of  goods  amounting  to  $2796.81.  At  the 
time  the  articles  were  furnished,  Konkle  was  the  occupant 
of  the  hotel,  and  the  articles  were  purchased  and  used  for 
the  purpose  of  furnishing  the  house.  The  larger  portion  of 
the  bill  was  sold  for  cash  on  delivery  of  the  articles,  the 
balance  on  a  credit  of  three  months.  On  the  twenty-third 
day  of  July,  Konkle  gave  three  bonds  with  warrants  of  at- 
torney to  confess  judgment ;  one  to  his  mother-in-law,  Mary 


MAY  TERM,  18G2. 


35 


Stoutenburgh  v.  Konkle. 


Plerson,  conditioned  for  the  payment  of  $1690.86,  one  to 
his  father,  John  Konkle,  conditioned  for  the  payment  of 
$1132,  and  one  other  to  Ira  C.  Moore,  conditioned  for  the 
payment  of  $710.  The  bonds  are  all  made  payable  on  de- 
mand. On  the  twenty-fourth  day  of  July,  judgments  were 
entered  upon  the  said  bonds,  executions  thereon  issued,  and 
placed  in  the  hands  of  the  sheriff;  the  property  of  the  de- 
fendant, including  the  articles  purchased  of  the  complainants, 
levied  upon ;  the  goods  advertised  for  sale  on  the  fifth  of 
August,  and  the  hotel  closed.  Immediately  on  the  entry  of 
the  said  judgments,  Konkle  absconded  from  the  city  of  New- 
ark, and  concealed  himself  from  his  creditors.  On  the 
twenty-fifth  of  July,  the  complainants  sued  out  a  writ  of 
attachment  against  Konkle,  as  an  absconding  debtor,  for  the 
amount  of  their  claim,  and  caused  the  same  to  be  served 
upon  the  goods  and  chattels  levied  upon  by  virtue  of  said 
executions.  On  the  thirtieth  of  July,  Konkle  confessed  a 
judgment  to  the  complainants  for  $2431.88,  the  balance  of 
their  claim,  $400  having  been  paid  thereon.  Upon  the  entry 
of  the  last  named  judgment,  the  attachment  was  discon- 
tinued, and  an  execution  issued  upon  the  judgment,  and 
levied  upon  the  said  personal  property  of  the  defendant. 

The  bill  charges  that  the  goods  were  sold  and  delivered  to 
Konkle,  on  the  faith  of  false  and  fraudulent  representations 
made  by  him,  that  he  had  $6000  in  cash  ;  that  he  owned  a 
farm  in  the  county  of  Warren,  worth  $12,000,  which  was 
sulject  Lo  encumbrances  amounting  to  $6000  only,  and  that 
he  owned  a  span  of  horses  worth  $1000 ;  that  previous  to 
confessing  the  said  judgments  he  sold  the  horses,  and  at  the 
time  of  confessing  the  first  named  three  judgments,  he  con- 
veyed the  farm  to  his  father  for  the  alleged  consideration  of 
$7000,  and  that  he  now  professes  to  be  entirely  without  prop- 
erty, excepting  that  which  is  levied  upon  under  said  judg- 
ments; that  the  goods  sold  by  the  complainants  are  readily 
distinguishable  from  the  other  goods  levied  upon  under  said 
judgments,  and  that  in  equity  the  complainants  have  a  lien 
upon  them  superior  to  the  claim  of  the  plaintiffs  in  the  other 


3G  CASES  IN  CHANCERY. 

Stoutenburgh  r.  Konklc. 

three  judgments  confessed  by  Konkle,  and  also  superior  to 
the  claim  of  the  landlord  of  the  premises,  in  which  the  goods 
are,  for  rent  claimed  to  be  due  by  him,  and  who  claims,  by 
reason  thereof,  to  have  a  lien  upon  the  said  goods. 

The  bill  further  charges,  that  the  goods  so  levied  upon 
will  not,  at  sheriff's  sale,  bring  enough  to  pay  the  amount  of 
the  said  three  judgments  first  confessed  by  Konkle,  and  that, 
in  equity,  the  goods  so  sold  by  the  complainants  to  Konkle, 
or  so  much  thereof  as  may  be  necessary  for  that  purpose, 
should  be  decreed  to  be  delivered  to  them  on  account  of  their 
judgment,  and  that,  by  reason  of  fraud  in  the  first  named 
three  judgments,  those  judgments  should  be  postponed  to 
the  complainants'  judgment,  so  far  as  may  be  necessary  for 
the  payment  of  any  balance  that  may  remain  unsatisfied  out 
of  the  goods  sold  by  the  complainants,  by  reason  of  the 
carrying  away  or  disposing  of  any  part  thereof  by  the  de- 
fendants. 

The  bill  prays  a  discovery  of  the  consideration  of  the 
three  first  named  judgments;  the  object  or  design  of  con- 
fessing the  same ;  whether  it  was  not  for  the  purpose  of  hin- 
dering, delaying,  or  defeating  the  claims  of  the  complainants 
and  other  creditors  of  Konkle;  and  that  the  complainants 
may  be  decreed  to  have  a  priority  in  the  payment  of  their 
judgment  over  the  other  judgments  confessed  by  Konkle,  and 
to  have  a  lien,  to  be  enforced  under  the  direction  of  the 
court,  upon  the  goods  so  sold  by  the  complainants  to  Konkle 
for  the  balance  due  them  for  the  purchase  money  of  said 
goods  prior  to  the  lien  of  the  said  first  three  named  judg- 
ments and  executions,  and  prior  to  the  claim  of  the  landlord 
for  rent;  that  the  goods  may  be  decreed  to  be  delivered  up 
to  the  complainants  to  satisfy  the  balance  due  them,  and  if 
there  be  not  sufficient  for  that  purpose,  that  the  complainants 
may  be  decreed  to  have  the  deficiency  satisfied,  and  paid  out 
of  the  other  goods  levied  upon,  before  the  payment  of  the 
prior  judgments ;  that  the  said  three  judgments  may  be  set 
aside  as  fraudulent,  and  that  an  injunction  may  issue 
restraining  the  sheriff  from  proceeding  to  a  sale  of  the  goods 


MAY  TERM,  1862.  37 


Stoutenburgh  v.  Konkle. 


levied  upon  by  virtue  of  the  executions  issued  on  said  judg- 
ments, and  also  restraining  the  landlord  from  distraining 
upon  said  goods  sold  by  complainants  for  rent  due,  or  claimed 
to  be  due. 

The  bill  is  filed  with  two  different  aspects,  and  seeks  cor- 
responding remedies — 

1.  It  charges  fraud  in  the  purchase  of  the  articles,  and  in 
obtaining  credit  from  the  complainants  by  Konkle,  by  reason 
whereof  the   complainants   claim   to    have   a  lien  upon  the 
articles  thus  purchased,  and  a  right  in  equity  to  have  them 
specifically   appropriated   to  the   payment   of   the  purchase 
money. 

2.  It  charges  fraud  in  the  confession  of  the  judgments  by 
Konkle   in  favor  of   other  creditors,  alleging  that  the  said 
judgments  were  without  consideration,  and  were  confessed  for 
the  fraudulent  purpose  of  hindering  and  delaying  the  com- 
plainants in  the  recovery  of  their  debt. 

It  is  evident,  from  the  frame  of  the  bill,  that  the  first 
ground  was  principally  relied  upon,  and  that  the  second  was 
introduced  mainly  for  the  purpose  of  discovery  and  as  aux- 
iliary to  the  main  design,  rather  than  as  a  distinct  and  sub- 
stantive ground  of  relief.  The  charges  of  the  bill,  touching 
the  second  ground  of  complaint,  were  in  themselves  so  gen- 
eral, so  deficient  in  specific  charges  of  fraud,  as  scarcely  to 
warrant  the  granting  of  an  injunction  upon  this  ground. 
Since  the  granting  of  the  rule  to  show  cause,  each  of  the 
defendants  whose  judgment  is  charged  to  be  fraudulent  has 
answered.  »  By  their  answer,  they  disclose  the  consideration 
upon  which  the  judgment  is- founded,  deny  all  fraud,  on  their 
part,  in  the  obtaining  of  said  judgments,  and  all  knowledge 
of  any  fraudulent  purpose  on  the  part  of  Konkle,  by  whom 
the  judgment  was  confessed.  On  a  careful  examination  of 
tlie  answers,  I  see  no  ground  to  distrust  their  truth  or  fair- 
ness. It  is  clear,  therefore,  that  no  injunction  can  issue 
upon  this  ground.  It  must  be  assumed,  in  the  consideration 
of  the  case,  that  the  plaintiffs,  in  the  judgments  which  are 
sought  to  be  impeached  by  the  bill,  are  bonafide  creditors  of 


38  CASES  IN  CHANCERY. 

Stoutenburgh  «.  Konkle. 

Konkle,  that  the  judgments  are  founded  upon  good  considera- 
tion, and  that  they  were  not  confessed  with  any  fraudulent 
intent  or  purpose. 

The  complainants'  claim  to  an  injunction  must  rest,  there- 
fore, upon  the  first  and  main  ground  disclosed  in  their  bill, 
viz.,  that  by  reason  of  the  fraud  practised  by  Konkle  in  the 
purchase  of  the  articles,  and  obtaining  of  the  credit  from 
the  complainants,  they  are  entitled  to  have  the  articles  thus 
purchased  specifically  appropriated  to  the  satisfaction  of  their 
judgment.  This  charge  is  quite  independent  of  the  charge 
of  fraud  in  the  confession  of  the  judgments,  and  the  relief,  if 
granted,  will  be  entirely  irrespective  of  the  bona  fides  or  mala 
fides  of  those  judgments  on  the  part  of  the  judgment  credi- 
tors. That  the  complainants'  counsel  so  regarded  it  is  evident 
from  the  fact  that  he  claims  priority  not  only  over  the  lien 
of  the  judgments  which  are  alleged  to  be  fiaudulent,  but  also 
over  the  claim  of  the  landlord  for  rent,  the  bona  fides  of 
whose  claim  is  not  called  in  question. 

It  is  not  claimed  that  the  vendor  of  chattel?  has  any  lien 
in  equity  upon  the  articles  sold  for  the  unpaid  purchase 
money.  That  equitable  lien  exists  only  upon  the  sale  of  real 
estate.  Adams'  Eq.  126-7  ;  2  Story's  Eq.,  §  1222. 

The  case  must  rest  exclusively  upon  the  ground  of  fraud 
in  the  purchase  of  the  articles  from  the  complainants,  which 
vitiated  the  contract  and  prevented  any  change  in  the 
ownership  of  the  chattels.  To  sustain  the  ca>e  upon  this 
ground,  the  articles  must  have  been  purchased  with  the  pur- 
pose of  defrauding  the  complainants,  or  the  credit  must  have 
been  obtained  by  false  and  fraudulent  representations  of 
material  facts  calculated  to  mislead  the  complainants,  and 
upon  which  they  acted  in  the  sale  of  the  goods.  If  Konkle 
purchased  those  goods  of  the  complainants  with  the  fraud- 
ulent design  of  subjecting  them  to  the  executions  of  his  near 
relatives  and  other  friends  having  claims  against  him,  how- 
ever just,  it  affords  a  clear  case  for  equitable  relief. 

A  purchaser  gains  no  title,  and  acquires  no  right  of  re- 
taining goods,  if  he  obtain  possession  by  gross  fraud  under 


MAY  TERM,  18G2.  30 

Stoutenburgh  v.  Konkle. 

color  of  purchase,  whether  on  credit  or  otherwise.  Chitty  on 
Con.  360;  HUliard  on  Sales  328. 

A  large  proportion  of  these  articles  were  sold  for  cash  on 
delivery,  and  had  the  purchaser,  on  delivery  of  the  goods 
and  demand  of  payment,  refused  to  pay  the  purchase  money, 
it  would  have  been  competent  for  the  complainants  at  once 
to  have  reclaimed  the  goods,  and  to  have  sought  the  protec- 
tion of  a  court  of  equity  against  judgment  creditors  of  the 
vendee.  In  such  case  no  title  passed.  The  condition  of  the 
sale  would  have  been  violated. 

So  if  an  insolvent  purchaser,  concealing  his  insolvency 
from  the  vendor,  procures  goods  without  intending  to  pay  for 
them,  the  property  in  the  goods  will  not  be  changed. 

In  Durell  v.  Haley,  1  Paige  492,  where  an  insolvent  con- 
fessed a  judgment  to  his  friend,  and  then  purchased  goods 
for  the  purpose  of  subjecting  them  to  the  execution,  it  was 
held  to  be  a  fraud  upon  the  vendor,  and  the  judgment 
creditor  who  had  purchased  the  goods  under  the  execution 
was  not  permitted  to  retain  them. 

It  is  sought  to  bring  this  case  within  the  operation  of 
these  principles.  But  were  these  goods  originally  purchased 
with  the  design  of  defrauding  the  complainants,  or  of  sub- 
jecting them  to  the  execution  of  his  friends  who  were  his  cred- 
itors? I  think  the  circumstances  under  which  this  purchase 
was  made  forbid  any  such  conclusion.  In  December,  1861, 
Konkle,  being  then  a  hotel  keeper  in  Newton,  leased  the 
City  Hotel  in  Newark  for  a  term  of  years,  and  in  March, 
1862,  he  removed  into  it  with  his  family,  and  commenced 
furnishing  it  for  the  business  for  which  it  was  leased.  The 
goods  procured  from  the  complainants  were  purchased  and 
used  for  the  purpose  of  furnishing  the  hotel.  It  is  ad- 
mitted, in  the  bill,  that  they  were  necessary  for  that  purpose. 
It  is  apparent,  moreover,  that  the  goods  purchased  of  the 
complainants,  a  schedule  of  which  is  annexed  to  the  bill, 
constituted  but  a  portion  of  the  -furniture  of  a  first  class 
hotel.  A  large  additional  amount  of  furniture  must  have 
been  purchased  or  provided,  and  large  additional  expenses 


I 

40  CASES  IN  CHANCERY. 

Stoutcnburgh  r.  Konkle. 

incurred  to  furnish  and  provide  the  house  for  business  as  a 
hotel.  It  is  incredible  that  the  defendant  should  have  re- 
moved his  family  to  Newark,  leased  a  large  hotel,  incurred 
heavy  expenses  in  furnishing  it,  assumed  the  payment  of  a 
heavy  rent,  and  engaged  in  a  new  and  expensive  business 
for  the  purpose  of  defrauding  those  of  whom  he  purchased 
the  goods.  It  seems  far  more  probable  that  he  entered  upon 
an  extensive  and  hazardous  business  without  sufficient  capi- 
tal or  business  capacity,  that  he  resorted  to  unjustifiable 
measures  to  obtain  credit,  and  that  his  means  proving  in- 
adequate, and  the  business  unsuccessful,  he  attempted  to  save 
his  immediate  friends  from  the  consequences  of  his  failure. 
Whatever  may  have  been  the  motives  of  his  subsequent  con- 
duct, I  think  there  is  no  reason  furnished  by  the  evidence, 
or  suggested  in  the  bill,  for  believing  that  the  original  pur- 
chase by  Konkle  of  the  complainants  was  made  with  the 
view  of  defrauding  them,  or  of  subjecting  the  property  pur- 
chased to  the  judgments  of  his  friends. 

Nor  do  the  representations  made  by  Konkle,  whether  true 
or  false  in  regard  to  his  means,  establish  the  fact  .that  his 
original  purpose  in  purchasing  the  property  was  fraudulent. 
That  he  afterwards  sold  his  farm  to  his  father  below  his  own 
valuation  and  below  its  true  value;  that  he  sold  his  horses, 
and  appropriated  the  proceeds  to  his  own  use,  may  show  a  de- 
sign to  defraud  his  creditors,  but  are  not  sufficient  to  show 
that  his  original  purpose  in  making  the  purchase  was  fraud- 
ulent. 

But  if  this  view  of  the  evidence  be  erroneous,  admitting 
that  the  evidence  does  show  that  this  purchase  from  the 
complainants  was  made  with  a  fraudulent  design,  and  that  the 
defendant  resorted  to  fraudulent,  and  even  criminal  misrep- 
resentations to  obtain  credit,  still  I  am  of  opinion  that  the 
injunction  ought  not  to  issue.  It  must  be  borne  in  mind 
that  the  controversy  is  not  between  the  complainants  and 
Konkle,  as  to  the  title  to  the  property,  but  between  judgment 
ci editors  of  Konkle,  as  to  the  appropriation  of  the  property 
to  the  payment  of  their  respective  debts.  Did  the  property 


MAY  TEEM,  1862.  41 

Stoutenburgh  v.  Konkle. 

in  question  belong  to  Konkle  or  to  the  complainants?  If  it 
belonged  to  Konkle,  it  is  subject  to  levy  and  sale  by  his  judg- 
ment creditors  in  the  order  of  their  priority.  Now  admitting 
all  the  allegations  of  the  bill  in  regard  to  the  frauds  of  Konkle 
in  their  fullest  extent;  admit  that  by  the  failure  of  Konkle 
to  pay -for  the  goods  on  delivery  they  had  a  right  to  reclaim 
them  ;  admit  that,  by  his  fraudulent  misrepresentations  to 
obtain  credit,  that  he  acquired  no  property  in  the  goods, 
and  that  they  had  a  right  to  rescind  the  contract  and  re- 
claim the  property,  do  they  now  stand  in  a  position  to  en- 
force that  chiim  ?  On  the  failure  of  Konkle,  and  on  his 
absconding,  they  did  not  claim  the  property  sold  by  them 
as  theirs,  and  call  upon  this  court  to  protect  it  from  the 
executions  of  the  judgment  creditors  of  Konkle.  They  did 
no  act  indicating  an  intention  to  disaffirm  the  contract  and  to 
reclaim  the  property  as  their  own.  On  the  contrary,  they  sued 
out  an  attachment  for  the  recovery  of  the  purchase  money  of 
those  goods.  An  affidavit  must  have  been  made,  as  the  ground 
of  that  attachment,  that  the  purchase  money  was  due  to  the 
complainants.  A  judgment  was  subsequently  entered  in  favor 
of  the  complainants  for  the  same  debt ;  an  affidavit  must  have 
been  again  made  that  the  purchase  money  of  those  goods  was 
a  debt  justly  and  honestly  due  and  owing  to  the  complainants. 
That  judgment  the  complainants  are  now  seeking  to  enforce. 
They  ask  that  the  debt  shall  be  satisfied  by  the  appropriation 
for  that  purpose  of  the  goods  sold  by  them  to  Konkle.  In- 
stead of  disaffirming  the  contract,  and  seeking  the  restoration 
of  the  goods  as  their  own  property,  they  affirm  the  contract, 
obtain  a  judgment  for  the  price,  and  seek  to  satisfy  the  judg- 
ment by  claiming  an  equitable  lien  upon  the  goods  sold.  I 
am  aware  of  no  principle  upon  which  the  claim  can  be  sus- 
tained, nor  have  I  met  with  an  authority  which  will  justify 
the  court  in  enforcing  it. 

The  motion  for  an  injunction  must  be  denied,  and  the  rule 
to  show  cause  discharged  with  costs. 

CITED  in  Williamson  v.  N.  J.  Southern  R.  R.  Co.,  2  Stew.  319. 


42  CASES  IN  CHANCERY. 


Youngblood  v.  Schamp. 


LEWIS  J.  YOUXG  BLOOD  and  WIFE  and  others  vs.  SCHAMP. 

When  an  injunction  is  applied  for,  there  should  be  a  special  affidavit  of 
the  truth  of  all  the  material  facts  upon  which  the  application  is  founded. 
An  injunction  issued  upon  the  common  affidavit  in  the  form  ordinarily 
annexed  to  an  answer  will  be  dissolved  very  much  as  a  matter  of  course. 

The  facts  need  not  be  proved  by  the  affidavit  of  the  complainant.  When 
the  material  facts  are  not  within  his  knowledge,  they  should  be  verified 
by  the  oath  or  affirmation  of  some  person  who  has  a  knowledge  of  the 
facts,  or  duly  verified  copies  of  private  instruments  or  of  records  may 
be  annexed  to  the  bill  when  such  is  the  appropriate  mode 'of  proof. 

In  bills  charging  fraud,  and  praying  a  discovery,  or  in  any  case  where,  in 
the  nature  of  things,  positive  proof  cannot  be  expected,  the  additional 
verification  may  be  dispensed  with,  and  the  injunction  may  issue  on  the 
affidavit  of  complainant  founded  on  belief  alone. 

If  complainant  is  absent,  or  his  affidavit,  for  any  reason,  cannot  be  pro- 
cured, it  may  be  sworn  to  by  the  attorney  of  complainant  or  by  any 
person  acquainted  with  the  facts. 

Where  the  bill  is  filed  by  a  corporation,  the  officer,  or  other  person  who 
has  the  principal  personal  knowledge  of  the  facts,  should  swear  to  them. 


This  bill  was  filed  by  Lewis  J.  Youngblood  and  others 
against  Henry  Schamp  and  Robert  Schamp,  executors  of 
Henry  G.  Schamp,  deceased,  for  an  injunction  to  restrain  the 
defendants  from  making  sale  of  a  farm  of  their  testator,  pur- 
suant to  an  order  of  the  Orphans'  Court  of  the  county  of 
Hunterdon.  The  bill  was  not  sworn  to  by  either  of  the 
complainants,  but  was  verified  by  the  oath  of  Mr.  James  M. 
Robinson,  the  solicitor  of  the  complainants,  and  by  copies  of 
the  documents  referred  to  in  the  bill,  which  were  annexed  to 
and  filed  with  the  bill,  and  were  duly  certified  by  the  surro- 
gate of  Hunterdon  county. 

Mr.  Robinson's  affidavit  stated,  as  a  reason  for  not  pro- 
curing the  affidavits  of  the  complainants  to  the  bill,  that 
their  residence  was  so  remote  from  where  the  bill  was  pre- 
pared, that  the  delay  occasioned  by  procuring  their  affidavits 
would  have  probably  defeated  the  whole  object  of  the  bill. 
On  allowing  the  injunction,  the  following  opinion  was  pre- 
pared by 


MAY  TERM,  1862.  43 

Youngblood  v.  Schamp. 

THE  CHANCELLOR.  There  should  be  a  special  affidavit 
of  the  truth  of  the  facts  upon  which  an  application  for  an 
injunction  is  founded.  An  injunction  issued  upon  the  com- 
mon affidavit  in  the  form  ordinarily  annexed  to  an  answer 
will  be  dissolved  very  much  as  a  matter  of  course.  Eden  on 
Inj.  377,  380;  Campbell  v.  Morrison,  7  Paige  157. 

It  is  rarely,  if  ever,t  that  the  right  to  an  injunction  can 
rest  upon  the  acts  of  the  complainant,  and  it  is  in  relation  to 
those,  alone,  that  the  affidavit  professes  to  be  founded  on 
knowledge.  As  to  the  acts  of  all  others,  it  is  founded  on 
belief  only. 

It  is  not  necessary  that  the  facts  should  be  proved  by  the 
affidavit  of  the  complainant.  Where  the  material  facts  are 
not  within  his  knowledge,  they  should  be  verified  by  the  oath 
or  affirmation  of  some  person  who  has  a  knowledge  of  the 
facts ;  or  duly  verified  copies  of  private  instruments  or  of 
records  may  be  annexed  to  the  bill,  where  such  is  the  appro- 
priate mode  of  proof.  Bank  of  Orleans  v.  Skinner,  9  Paige 
305;  Rule  IX,  §  11 ;  Nix.  Dig.  90,  §  15. 

There  is  a  class  of  cases,  as  for  example  bills  charging  fraud, 
and  praying  a  discovery,  where,  in  the  very  nature  of  things, 
positive  proof  cannot  be  expected.  In  such  cases  the  addi- 
tional verification  may  be  dispensed  with,  and  the  injunction 
issue  upon  the  affidavit  of  the  complainant,  founded  on  his 
belief  alone.  Attorney  General  v.  Bank  of  Columbia,  1  Paige 
511 ;  Campbell  v.  Morrison,  7  Paige  157. 

The  bill  is  usually  sworn  to  by  the  complainants,  or  one  of 
them.  But  if  he  be  absent,  or  his  affidavit  for  any  reason 
cannot  be  procured,  it  may  be  sworn  to  by  the  attorney  of  the 
complainant,  or  by  any  person  acquainted  with  the  facts. 
1  Smith's  Chan.  Pr.  595  ;  3  DanieWs  Chan.  Pr.  1890;  1  Ho/- 
man's Chan.  Pr.  79  ;  3  Ibid.  18,  No.  21. 

Where  the  bill  is  filed  by  a  corporation,  the  officer  or  other 
person  who  has  the  principal  personal  knowledge  of  the 
facts  should  swear  to  them.  1  Hoffman's  Chan.  Pr.  78 ;  3 
Ibid.  1 8,  No.  20 ;  Bank  of  Orleans  v.  Skinner,  9  Paige  305. 

By  the  English  practice,  the  affidavit  cannot  be  sworn  until 


44  'CASES  IN  CHANCERY. 

Rinehart's  ex'rs  v.  Rineliart. 

after  the  bill  is  filed.  1  SmUli'a  Chan.  Pr.  195  ;  3  Daniell's 
Chan.  Pr.  1890. 

A  contrary  practice  prevails  in  this  state.  The  affidavit  is 
ordinarily  made  before  the  bill  is  filed,  and  is  annexed  to  and 
filed  with  the  bill. 

The  affidavit,  in  its  present  form,  is  not  sufficient.  The 
verification  should  extend  loall  the  m.aterialt  facts  upon  which 
the  right  to  an  injunction  rests. 


RINEHART'S  EXECUTORS  M/WlLLIAlf  RINEHART  and  others. 

In  suits  brought  by  executors,  the  rule  in  equity  is,  {hat  only  the  executors 
who  have  proved  the  will  must  be  parties.  An  executor  who  has  re- 
nounced need  not  be  joined  as  co-plaintifl'. 


This  was  a  bill  filed  by  Samuel  Rinehart  and  Peter  Rine- 
hart,  executors  of  Adam  Rinehart,  deceased.  It  was  set 
forth,  in  the  bill,  that  by  the  will  of  Adam  Rinehart,  de- 
ceased, the  complainants  and  one  Jacob  Hipp  were  appointed 
the  executors.  The  complainants  proved  the  will,  and  took 
upon  themselves  the  administration  of  the  estate.  Before 
filing  the  bill,  Hipp,  the  other  executor,  filed  with  the  surro- 
gate a  renunciation  in  writing,  refusing  to  administer  the  es- 
tate or  to  take  upon  himself  any  part  of  the  burthen  thereof. 

To  this  bill  the  defendants  demurred,  on  the  ground  that 
Jacob  Hipp  should  have  been  joined  as  a  complainant  in  the 
bill. 

Van  Syckel,  in  support  of  the  demurrer,  cited  If  ill's  Execu- 
tors v.  Smalley,  1  Dufchcr  374 ;  Hensloe's  case,  9  Coke  37 ;  1 
ChUty's  Pleading  13;  Cabe.ll  v.  Vaughn,  I  Saund.  291,  <;; 
3  T.  Raymond  558  ;  Toller  on  Executors  68-9 ;  Judson  v. 
Gibbons,  5  Irene/.  224  j  Wankford  v.  Wankford,  1  SalkeUl 
307  ;  Thompson  v.  Graham,  I  Paige  384  ;  Ojfter  v.  Jenncr, 
3  Glut.  Rep.  92 ;  Ferguson  v.  Ferguson,  1  Hays  &  J.  300. 


MAY  TEEM,  1862.  45 

Kinehart's  ex'rs  v.  Rinehart. 

Vliet,  contra,  cited  1  Williams  on  Executors  241,  242,  4th 
Am.  ed.;  Nix.  Dig.  276,  §17;  Potts'  Precedents  56,  57; 
Hughes'  Eq.  Draftsman  143,  Precedent  46  ;  Ibid.  251  to 
253,  Precedent  80 ;  Davies  v.  Williams,  1  Simons  5 ;  Cramer 
v.  Morton,  2  Molloy  108  ;  Thompson  v.  Graham,  1  Paige  384. 

THE  CHANCELLOR.  The  demurrer  in  this  case  raises  the 
simple  question,  whether  a  person  appointed  an  executor,  but 
who  has  renounced  the  executorship,  is  a  necessary  party  to  a 
suit  in  equity. 

At  law  the  rule  is,  that  all  the  executors  named  in  the 
will  must  be  joined  as  plaintiffs.  Hensloe's  case,  9  Coke  37  ; 
Hunt  v.  Kearney,  Penn.  721 ;  Executor  of  Hill  v.  Srnalley,  1 
Dutcher  374. 

The  rule  in  equity  is,  that  all  the  executors  who  prove  the 
will  must  be  parties — none  others  need  be  so.  Davies  v.  Wil- 
liams, I  Sim.  5 ;  Kelby  v.  Stanton,  2  Younge  &  Jer.  77  ; 
Cramer  v.  Morton,  2  Molloy  108  ;  2  Will  on  Ex'rs  1626  ; 
Thompson  v.  Graham,  1  Paige  384;  1  DanieWs  Ch.  Prac. 
273;  Marsh's  Ex'rs  v.  Oliver's  Ex'rs,  1  McCartcr  262. 

In  Cramer  v.  Morton,  the  Chancellor  said :  "  I  am  clear 
that  an  executor  armed  with  probate,  Avithout  an  executor 
named  in  the  will,  but  not  joined  in  the  probate,  is  compe- 
tent to  sue.  If  he  was  not,  this  inconvenience  would  follow, 
lie  cannot  compel  the  other  either  to  prove,  or  to  renounce,  or 
to  join  as  co-plaintiff.  But  if  he  will  do  none  of  these  things, 
he  must  be  made  a  defendant.  But  this  is  an  inconvenience 
without  benefit  or  good  sense." 

So  at  law  one  executor  cannot  sue  another,  but  in  equity 
he  may.  Tothill  74 ;  Wyatt's  Prac.  Eeg.  209 ;  2  Witt,  on 
Ex'rs  1625. 

The  reasons  assigned  for  the  rule  at  law  are,  that  the 
executors  constitute  but  one  person ;  that  each  executor  de- 
rives his  interest  from  the  will  itself;  that  the  probate  is 
merely  operative  as  the  authenticated  evidence,  and  not  as 
the  foundation  of  the  executor's  title;  and  that  the  renuii- 

VOL.  n.  O 


46  CASES  IN  CHANCERY. 

Rinehart's  ex'rs  v.  Rinehart. 

elation  is  a  renunciation  of  probate  merely,  and  not  a  renun- 
ciation or  waiver  of  title.  1  Witt,  on  Etfra  239. 

It  has  often  been  said  that  the  reasons  for  the  rule  at  law 
are  not  satisfactory.  The  rule  itself  leads  to  no  valuable 
end.  It  is  inconvenient  in  practice,  and  operates  to  embar- 
rass and  delay  suitors.  It  is  at  best  a  technical  rule,  of 
which  the  common  law  courts  rid  themselves  whenever  it  is 
necessary  to  the  ends  of  justice.  Thus,  notwithstanding  the 
rule,  that  one  executor  cannot  sue  another,  it  was  held,  in 
Rawlinson  v.  Shaw,  3  T.  R.  557,  that  an  executor  who  has 
renounced  may  sue  the  acting  executor.  So  if  the  executor 
who  has  renounced  refuses  to  join  in  an  action,  he  may  be 
proceeded  against  by  summons  and  severance,  after  which  the 
acting  executor  will  be  permitted  to  prosecute  the  suit  alone. 
Bodle  v.  Hulse,  5  Wend.  313. 

But  why  should  this  formality  be  resorted  to  after  the  ex- 
ecutor has  by  a  solemn  instrument  under  his  hand  and  seal 
renounced  the  executorship  ? 

In  the  elaborate  opinion  in  Hensloe's  case,  9  Coke  38,  a, 
which  is  the  foundation  of  all  the  subsequent  authorities,  it 
is  said,  that  "  when  the  spiritual  court  have  proved  the  tes- 
tament their  authority  is  executed,  and  they  have  not  power 
to  take  the  refusal  of  any,  when  any  of  the  executors  prove 
the  will.  And  therefore  the  refusal  of  any  of  the  executors 
before  the  Ordinary  in  such  case  is  void."  And  again,  to  the 
objection  that  one  who  hath  waived  the  executorship  should 
not  afterwards  take  the  same  upon  him,  it  is  answered, 
"forasmuch  as  the  ecclesiastical  judge  hath  not  power 
to  receive  that  refusal  or  disagreement,  it  is  upon  the 
matter  done  to  a  stranger,  and  by  consequence  void  and  of 
no  force  to  bar  the  plaintiff  to  take  upon  him  the  same  after- 
wards." 

Whatever  weight  this  argument  may  be  entitled  to  under 
the  English  statute,  it  cannot,  I  think,  be  doubted  that  under 
our  statute,  and  by  the  well-settled  practice  of  this  state,  the 
surrogate  may  receive  the  renunciation  by  an  executor,  and 
ithat  it  is  not  void.  When  a  party  named  as  executor  has 


MAY  TERM,  1862.  47 

Clement  v.  Kaighn. 

thus  renounced,  why  should  it  not  be  regarded  as  a  final  de- 
termination of  his  interest,  or  at  least  as  conclusive  upon  the 
question  until  the  ecclesiastical  court  has  treated  the  renun- 
ciation as  inoperative  by  granting  probate  to  the  party  re- 
nouncing? A  person  appointed  trustee  will  never  be  com- 
pelled to  accept  a  trust  against  his  will.  Hill  on  Trustees 
214,  225.  A  party  named  as  executor  cannot  be  compelled 
to  accept  the  executorship,  or  bear  the  burthen  of  the  trust, 
except  by  his  own  voluntary  act.  And  it  is  difficult  to  con- 
ceive any  good  reason  why  he  should  be  made  a  party  to  a 
suit  touching  a  trust  which  he  has  formally  renour^ed,  and 
to  which  he  disclaims  all  right  or  title,  or  why  lie  should  be 
brought  into  court  merely  for  the  purpose  of  being  turned 
out  again. 

But  aside  from  these  considerations,  which  are  adverted  to 
merely  in  vindication  of  the  course  of  practice  in  equity,  it 
is  enough  to  say  that  equity  looks  to  the  probate  of  the  will 
as  competent  evidence  of  the  power  and  authority  of  the 
executors  to  sue  and  be  sued.  It  requires  that  the  probate 
should  be  stated  in  the  bill,  and  that  those,  and  those  only, 
who  have  proved  the  will  should  be  parties  to  the  suit.  I 
speak,  of  course,  only  of  the  regular  and  ordinary  practice 
of  the  court.  An  executor  who  has  renounced  may,  by  in- 
termeddling with  the  estate  or  by  other  circumstances,  be 
rendered  a  necessary  party.  Where  such  interest  appears,  he 
may  be  made  a  party  at  any  stage  in  the  progress  of  the  suit. 

The  demurrer  is  overruled. 

CITED  in  Hansom  v.  Geer,  3  Stew.  251. 


MICKLE  CLEMENT  and  others  vs.  CHARLES   KAIGHX  and 

others. 

On  a  bill  to  foreclose  a  mortgage,  it  appeared  that  C.,  one  of  defendants, 
recovered  a  judgment  against  K.,  the  mortgagor,  on  the  23d  of  January, 
1858,  but  took  out  no  execution  thereon  until  June  25th,  1862,  Com- 
plainant's mortgage  was  recorded  on  the  26th  of  December,  1859,  and  in 


48  CASES  IN  CHANCERY. 

Clement  v.  Kaighn. 

June,  1861,  several  other  judgments  were  recovered  against  the  mort- 
gagor, on  which  executions  were  promptly  taken  out  and  levied  ou  the 
mortgaged  premises.  On  a  dispute  about  the  priority  of  these  several 
encumbrances,  it  was  held — 

That  C.,  by  neglecting  to  issue  an  execution  on  his  judgment  until  after 
executions  had  been  issued  on  the  junior  judgments  had  lost  his  priority, 
not  only  over  the  younger  judgments,  but  also  over  the  complainants' 
mortgage,  which  was  entitled  to  priority  over  the  younger  judgments. 

The  history  of  the  legislation  of  this  state  regulating  the  priority  of  exe- 
cutions reviewed. 

Although  the  statute  (Nix.  Dig.  724,  $  9,)  in  terms,  relates  merely  to  the 
title  which  a  purchaser  by  virtue  of  a  sheriff's  sale  under  an  execution 
at  law  shall  acquire,  the  operation  of  it  cannot  be  limited  only  to  the 
case  of  a  sale  under  the  junior  judgment,  where  no  execution  has  been 
sued  out  upon  the  senior  judgment,  and  levied  on  the  land. 

The  junior  judgment,  by  suing  out  and  levying  the  first  execution  upon 
the  land,  acquires  a  priority  of  lien,  which  cannot  be  affected  by  any 
execution  subsequently  issued,  nor  by  any  mode  in  which  the  land  may 
be  sold.  The  issue  of  the  execution  upon  the  junior  judgment,  and  its 
delivery,  duly  recorded,  to  the  sheriff  destroys  the  priority  which  was 
enjoyed  by  the  older  judgment,  and  transfers  it  to  the  junior  judgment. 

Executions  against  real  estate  have  priority  according  to  the  time  of  their 
delivery,  duly  recorded,  to  the  sheriff,  irrespective  of  the  dates  of  the 
judgments. 

The  same  result  which  would  follow  from  a  sale  on  an  execution  issued  on 
the  junior  judgments  would  follow  a  sale  under  a  decree  of  this  court. 
The  order  of  the  encumbrances  cannot  be  changed  or  aflected  by  the 
tribunal  out  of  which  the  execution  issues. 

Where  a  statute,  originally  one,  has  its  provisions  broken  up  by  a  revision 
of  the 'law,  and  incorporated  in  two  different  acts,  the  construction  ol 
these  provisions  cannot  be  affected  by  their  change  of  collocation.  They 
are  in  pari  materia,  and  their  construction  must  be  the  same  as  if  they 
remained,  as  originally  enacted,  parts  of  the  same  statute. 


The  facts  of  this  case  sufficiently  appear  by  the  opinion  of 
the  Chancellor. 

The  case  was  argued  ex  parte  by 

Mr.  P.  L.  Voorhees,  for  the  mortgagee. 

At  common  law,  judgments  were  not  liens  upon  lands,  and 
would  not  have  bound  the  premises — they  are  liens  only  by 
force  of  the  statutes. 


MAY  TERM,  1862.  49 


Clement  v.  Kaighn. 


The  question  in  this  case  arises  by  force  of  the  statutes  of 
this  state  entitled  "an  act  respecting  executions,"  &c.,  Nix. 
Dig,  247,  and  an  act  entitled  "  an  act  making  lands  liable  to 
be  sold  for  the  payment  of  debts,"  Nix.  Dig.  722. 

The  act  entitled  "  an  act  to  register  mortgages"  makes  a 
mortgage  void  against  a  subsequent  judgment  creditor,  or 
bona  fide  purchaser  or  mortgagee  not  having  notice  thereof, 
unless  acknowledged  according  to  law  and  duly  recorded, 
Nix.  Dig.  527,  §  10,  cannot  in  any  way  affect  this  question. 

The  statutes  above  referred  to  respecting  executions  and 
making  lands  liable  to  be  sold  for  payment  of  debts,  or  such 
parts  thereof  as  affect  the  question  in  this  case,  are  taken 
from  an  earlier  statute,  passed  in  1799,  which  was  substan- 
tially the  same  as  the  first  statute  of  this  state  making  lands 
liable  to  be  sold  for  payment  of  debts  upon  execution,  passed 
in  1743,  17  Geo.  II.  See  I  Neville's  Laws  279;  Allison's 
Laws  129. 

By  the  1st  and  2d  sections  of  this  statute,  lands  are  to  be 
sold  as  chattels  for  the  payment  of  debts,  and  by  the  subse- 
quent sections,  provisions  are  as  to  the  manner  of  adver- 
tisements- sales,  making  deeds,  &c. 

By  the  7th  section  of  this  act  (which  is  substantially  the 
same  as  the  9th  section  of  the  "act  making  lands  liable  to 
be  sold  for  debts,"  Nix.  Dig.  724,)  it  is  provided  that  lands 
sold  by  execution  shall  be  free  and  clear  of  all  judgments 
and  recognizances  upon  which  no  execution  has  been  issued. 

By  the  llth  section  of  the  act  of  1743  it  is  provided,  that 
when  sundry  executions  have  issued,  and  sufficient  cannot  be 
levied  to  satisfy  all,  that  such  priority  and  preference  as  the 
law  gives  in  the  case  of  executions  against  personal  estate 
only  shall  be  given,  and  all  disputes  shall  thereby  be  regu- 
lated and  determined. 

The  preferences  then  given  by  law  in  cases  of  executions 
against  personal  property  was,  that  the  goods  and  chattels 
should  only  be  bound  from  the  actual  delivery  of  the  writ  to 
the  sheriff  or  officer.  3  Bla.  Com.  420,  421. 

To  the  act  of  1743,  a   supplement  was  passed  in  1779, 


60  CASES  IN  CHANCERY. 

Clement  v.  Kaighn. 

niuking  provisions  for  the  execution  of  deeds,  &c.,  in  case  of 
a  sale  by  a  sheriff,  and  his  death  before  the  delivery  of  a 
deed,  &c.  Wilson's  Laws  79. 

The  above  acts  remained  in  force  until  the  revision  by 
Judge  Paterson,  in  1799,  when  they  were  repealed,  and  au 
act  entitled  "  an  act  making  lands  liable  to  be  sold  for  the 
payment  of  debts  "  was  passed.  See  Paterson's  Laws  369. 

By  the  2d  section  of  the  last  named  aqt  it  is  enacted,  that 
no  judgment  should  bind  the  land  but  from  the  time  of  the 
actual  entry  of  such  judgment  in  the  minutes  of  the  court. 

By  the  3d  section  it  was  enacted,  that  no  writ  of  execution 
should  bind  property  or  goods  but  from  the  time  such  writ 
was  delivered  to  the  sheriff  or  officer,  and  for  the  manifesta- 
tion of  such  time  the  sheriff  should  endorse  on  such  writ  the 
day  of  the  month  when  he  received  the  same,  and  that  if 
two  or  more  executions  were  delivered  the  same  day,  that 
which  was  first  delivered  should  be  first  executed  and  satis- 
fied. 

By  the  4th  section  it  was  enacted,  that  when  sundry  writs 
issued  against  g«ods  and  chattels,  lands  and  tenements,  &c., 
of  the  same  person,  and  sufficient  could  not  be  found  to  satisfy 
all,  then  the  like  priority  and  preference  should  be  given  as 
is  given  in  the  preceding  sections  in  writs  of  execution 
against  goods  only,  and  all  disputes  respecting  the  same 
should  be  adjudged  and  determined  accordingly. 

The  3d  arid  4th  sections  seem  to  have  been  substituted  by 
the  revisor  for  section  11  of  the  act  of  1743;  section  3  seems 
only  declaratory  of  what  the  common  law  was  in  reference 
to  writs  of  execution  against  goods;  and  section  4  makes 
executions  against  land  subject  to  the  same  rule  as  to  priori- 
tics,  and  in  effect  continues  the  llth  section  of  the  act  of 
1743. 

Section  13  of  this  act  (Paterson's  Laws  371)  is  the  same 
as  the  7th  section  of  the  act  of  1743,  and  renders  laud  sold 
on  execution  free  from  all  judgments,  &c.,  on  which  no  exe- 
cution had  been  issued,  &c. 

The  above  act,  as  revised  by  Judge  Paterson,  was   con- 


MAY  TERM,  1862. 


Clement  v.  Kaiglm. 


tinued  unaltered,  so  far  as  the  sections  affecting  this  question 
are  concerned,  until  the  revision  of  1846,  although  there 
were  some  supplements  added  thereto.  See  Rev.  Laws  1820, 
430;  Supplements;  Rev.  Laws  1820,  670,  794.  See,  also, 
Elmer's  Digest  486  et  seq. 

Under  this  statute  it  is  fully  established  at  law  that  execu- 
tions against  real  estate  have  priority  according  to  the  time 
of  their  delivery  to  the  sheriff  duly  recorded.  Elmer  v. 
Eurgin,  1  Penn.  187  ;  Johnston  v.  Darrah,  3  Halst.  282.  See 
also  Chaffees  ads.  Voorhees,  4  Zab.  507. 

By  the  revision  of  1846  the  above  act  was  divided,  a  part 
of  the  sections  being  included  in  the  act  entitled  "an  act 
respecting  executions,"  &c.  Rev.  Stat.  1846,  976;  Nix.  Dig. 
242,  viz.  section  5  of  act  of  1799  is  section  1  of  act  of  1846, 
section  7  of  act  of  1799  is  section  2  of  act  of  1846,  and 
sections  3  and  4  of  act  of  1799,  are  sections  3  and  4  of  act 
of  1846,  and  the  remaining  sections  of  the  act  of  1799  are 
included  in  the  act  entitled  "  an  act  making  lands  liable  to 
be  sold  for  the  payment  of  debts."  Rev.  Stat.  1846,  660; 
Nix.  Dig.  722. 

These  two  statutes,  as  they  now  stand,  ought  to  be  con- 
strued together,  and  such  construction  given  to  them  as  will 
give  effect  to  both  acts  as  if  they  were  still  one  act.  They 
were  approved  the  same  day,  and  neither  has  priority  as  to 
date  of  enactment.  The  sections  of  the  two  acts,  as  they 
now  stand,  or  at  least  all  the  sections  that  control  this  case, 
were  originally  included  in  one  act. 

The  revisers  of  1846  had  power  to  collate  and  revise  public 
acts,  and  to  reduce  into  one  act  different  acts  and  parts  of  acts. 
Rev.  Stat.  1846,  39  ;  Laws  1845,  202. 

The  revisors  did  not  alter  the  sections  of  these  two  acts  ; 
they  are  substantially  the  same  as  they  were  first  drafted  by 
Judge  Paterson.  The  revisors  only  placed  them  in  two  acts, 
instead  of  leaving  them  in  one,  as  they  were  before  the  revi- 
sion. 

There  being  no  alteration  in  the  words  of  the  statute,  only 


52  CASES  IN  CHANCERY. 

Clement  v.  Kaighn. 

in  the  arrangement  of  the  sections,  we  submit  the  law  re- 
mains the  same  as  before  the  revision. 

The  converse  of  this  rule  is  decided  in  the  case  of  Murphy, 
3  Zab.  192,  in  reference  to  the  revision  of  1799  by  Judge 
Pateraon.  I  am  not  aware  that  any  decision  has  been  made 
in  reference  to  the  revision  of  1846. 

This  being  established,  we  submit  that  the  judgment  and 
execution  of  S.  Coulter  are  subject  to  the  judgments  and  exe- 
cutions of  the  other  judgment  creditors,  as  reported  by  the 
master. 

That  although  the  statute,  Nix.  Dig.  722,  §  2,  provides 
that  judgments  shall  not  bind  lands  but  from  the  time  of 
their  actual  entry  in  the  minutes,  yet  this  does  not  create  a 
complete  lien,  but  rather  an  inchoate  one ;  it  is  a  lien  that 
is  liable  to  be  divested  by  any  subsequent  judgment  upon 
which  execution  shall  be  first  issued,  recorded,  and  delivered 
to  the  sheriff  or  officer,  in  accordance  with  the  4th  section  of 
statute,  Nix.  Dig.  247. 

That  Coulter,  having  failed  to  issue  an  execution  on  Lia 
judgment  until  long  after  the  executions  issued  upon  the 
subsequent  judgments  were  recorded  and  delivered  to  the 
sheriff,  failed  to  complete  or  perfect  his  lien ;  hence  his  judg- 
ment and  execution  are  postponed  to  and  subject  to  the  judg- 
ments and  executions  of  the  other  judgment  creditors. 

That  when  a  person,  by  his  own  laches,  loses  a  right,  courts 
will  not  help  him  regain  that  right. 

That  the  judgment  lien  of  Coulter  was  a  mere  legal  right 
conferred  by  statute;  that  he  failing  to  complete  and  perfect 
that  lien,  and  having  become  subject  to  the  liens  or  rights  of 
others,  this  court  will  not  reinstate  him  to  the  position  he 
would  have  held  if  he  had  completed  or  perfected  his  lien  by 
issuing  execution.  Douglas  v.  Houston,  6  Ohio  ]62. 

The  judgment  and  execution  of  Coulter,  thus  being  sub- 
ject to  the  judgments  and  executions  of  other  judgment 
creditors,  must  be  subject  lo  the  mortgage  of  the  complainant, 
which  is  prior  to  all  the  other  judgment  creditors ;  that  when 
one,  holding  a  lien  by  his  own  act,  makes  it  subject  to  another 


MAY  TERM,  1862.  53 

Clement  v.  Kaighn. 

independent  lien,  it  must  be  subject  to  all  intervening  liens; 
in  other  words  Coulter,  having  permitted  his  judgment  to 
become  subject  to  the  other  judgments  and  executions,  can- 
not thereby  give  them  a  priority  over  the  mortgage  of  the 
complainant  because  he  had  an  inchoate  lien  prior  in  time 
to  the  mortgage  of  the  complainant. 

As  against  subsequent  encumbrancers,  &c.,  this  court  will 
give  effect  to  the  judgment  and  execution  of  Coulter  only  so 
far  as  the  same  could  be  enforced  by  execution  at  law.  Bu~ 
chan  v.  Sumner,  2  Barb.  Ch.  R.  194,  195  ;  Mower  v.  Kip, 
6  Paige1 8  Ch.  R.  88 ;  2  White  &  T.  Lead.  Ca.  Eq.  108. 

As  we  have  shown,  the  judgment  and  execution  of  Coulter 
are  subject  to  the  judgments  and  executions  of  the  other 
creditors;  that  the  judgments  and  executions  of  the  other 
creditors  are  subject  to  the  mortgage  of  the  complainant. 
Therefore  the  judgment  and  execution  of  Coulter  are  subject 
to  the  mortgage  of  the  complainant,  and  directions  should 
be  made  to  establish  the  priorities  in  accordance  therewith. 

That  this  is  the  true  result  will  further  appear  from  the 
9th  section  of  the  act  for  the  sale  of  lands,  Nix.  Dig.  724. 
By  the  provisions  of  this  section,  if  at  any  time  after  the 
judgments  were  obtained,  and  executions  delivered  to  the 
sheriff  in  January,  1861,  the  judgment  creditors  had  pro- 
ceeded and  sold  the  mortgaged  premises  upon  their  execu- 
tions, they  would  have  conveyed  the  land  free  from  the  judg- 
ment of  Coulter  but  subject  to  the  mortgage.  See  Den  v. 
Young,  1  Hoist.  300. 

THE  CHANCELLOR.  By  the  interlocutory  decree  in  this 
cause,  it  was  referred  to  one  of  the  masters  of  the  court  to 
ascertain  and  report  the  amount  due  to  the  complainant,  and 
also  the  amount  due,  if  anything,  to  sundry  creditors  upon 
judgments  specified  in  the  bill  of  complaint,  and  also  to 
ascertain  and  report  the  order  and  priority  of  the  said  mort- 
gage and  judgments. 

The  master  reports  that  Stephen  Coulter,  one  of  the  de- 
fendants, recovered  judgment  against  Charles  Kaighn,  th« 


64  CASES  IN  CHANCERY. 

Clement  v.  Kaiglm. 

mortgagor,  in  the  Supreme  Court,  on  the  twenty-third  of 
January,  1858,  upon  which  judgment  there  appeared  to  be 
due,  at  the  date  of  the  report,  $12,103.93,  but  that  no  exe- 
cution issued  upon  this  judgment  until  June  twenty-fifth, 
1862,  since  the  filing  of  the  complainant's  bill  of  complaint; 
that  the  complainant's  mortgage,  duly  executed  and  acknow- 
ledged, was  recorded  on  the  twenty -sixth  of  December,  1859  ; 
that  from  January  ninth,  to  June  sixteenth,  1861,  there  were 
nineteen  judgments  recovered  against  the  mortgagor,  upon 
seventeen  of  which  writs  of  fieri  facias  were  issued  to  the 
sheriff  of  the  county  of  Camden,  where  the  premises  lie. 

Upon  this  state  of  facts,  the  master  reports  that  he  is  un- 
able to  determine  the  order  which  the  judgment  of  Coulter 
should  occupy  in  the  distribution  of  the  proceeds. of  the  sale 
of  the  mortgaged  premises,  whether  it  should  be  paid  prior 
to  the  complainant's  mortgage,  thus  having  priority  over 
the  judgments  to  which  it  is  subject,  or  whether  it  should  be 
paid  after  the  said  judgments,  thus  losing  its  priority  over 
the  complainant's  mortgage. 

The  entry  of  Coulter's  judgment,  being  prior  in  point  of 
time  to  the  complainant's  mortgage,  is  made  by  the  statute 
a  prior  encumbrance.  The  judgment  binds  the  land  from 
the  entry  of  the  judgment  on  the  records  of  the  court.  Nix. 
J}iff.  761,  §  2. 

But  the  record  of  the  complainant's  mortgage,  being  prior 
to  the  entry  of  the  defendant's  judgments,  is  a  prior  encum- 
brance to  those  judgments.  Nix.  Dig.  550,  §  10. 

The  order  of  priority  of  the  several  encumbrances,  had  no 
executions  been  issued  upon  the  subsequent  judgments,  is 
perfectly  clear.  The  embarrassment  is  created  by  the  fact 
that  executions  were  issued  upon  the  junior  judgments,  and 
levied  upon  the  land  before  any  execution  was  i.isued  upon 
the  first  judgment;  and  by  the  provision  of  the  statute, 
which  under  such  circumstances  postpones  the  prior  to  the 
junior  judgment,  or  in  terms  enables  the  junior  judgment  to 
Bell  the  land  clear  of  the  encumbrance  of  the  prior  judgment. 

Real  estate  in  New  Jersey  was  made  subject  to  the  pay- 


MAY  TERM,  1862.  55 

Clement  v.  Kaighn. 

ment  of  debts,  and  the  proceedings  of  the  sheriff -thereon, 
regulated  by  the  provincial  act  of  December  second,  1743. 
1  Neville  279 ;  Allison  129.  By  the  first  section  of  that  act, 
it  is  declared  that  real  estate  within  the  province,  belonging 
to  any  person  indebted,  shall  be  liable  to  and  chargeable 
with  all  his  just  debts,  and  shall  be  chattels  for  the  satisfac- 
tion thereof,  in  like  manner  as  personal  estates  are  seized, 
sold,  or  disposed  of  for  the  satisfaction  of  debts.  By  the 
third  section,  it  is  enacted  that  the  sheriff  shall  make  to  the 
purchaser  as  good  and  sufficient  a  conveyance  for  the  land 
purchased  under  the  provisions  of  the  act  as  the  owner  of 
the  land  could  have  made  at  the  time  of  the  judgment,  and 
that  the  purchaser,  by  the  said  deed,  shall  be  vested  with  as 
good  and  perfect  an  estate  as  the  owner  was  seized  of  or  en- 
titled unto  at  or  before  the  said  judgment,  and  as  fully  as  if 
the  lands  were  sold  and  conveyed  by  the  owner  to  the  pur- 
chaser. 

The  sixth  section  declares  that  the  purchaser  shall  hold 
the  premises  so  purchased  free  and  clear  of  all  other  judg- 
ments, by  virtue  whereof  no  execution  lias  been  executed 
upon  the  real  estate  so  purchased.  The  seventh  section  di- 
rects that  no  process  against  real  estate  shall  issue  until  the 
record  of  the  judgment  and  the  process  shall  have  been  in- 
spected by  one  of  the  justices  of  the  Supreme  Court,  and  it 
shall  have  been  certified  by  him  that  no  error  is  therein 
apparent  to  him,  and  the  said  judgment  and  process  shall  be 
recorded  in  a  book  to  be  kept  for  that  purpose  before  sending 
such  process  to  the  sheriff  or  other  officer. 

The  tenth  section  directs  that,  where  sundry  executions 
have  issued  requiring  the  sale  of  real  estate,  such  priority 
and  preference  shall  be  given  as  the  law  gives  in  the  case  of 
executions  against  personal  estate  only. 

Then,  as  now,  executions  bound  personal  estate  from  the 
time  of  the  delivery  thereof  to  the  sheriff.  2  Bla.  Com.  421  ; 
Nix.  Dig.  248,  §  3. 

These  provisions  of  the  act  of  1743  have  substantially 
continued  in  force  till  the  present  time.  They  ^yill  be  found 


56  CASES  IN  CHANCERY. 

Clement  v.  Kaighn. 

embodied  in  tha  act  of  February  18th,  1799,  §  1,  3,  4,  8,  12, 
13;  Patcrson  369;  Rev.  Laws  430. 

The  second  section  of  the  act  of  1799  provides  that  the 
judgment  shall  bind  the  lands  only  from  the  time  of  the  ac- 
tual entry  of  such  judgment  on  the  minutes  or  records  of 
the  court ;  whereas,  by  the  common  law,  it  operated  from  the 
first  day  of  the  term  in  which  it  was  entered,  and  by  the 
statute  of  frauds,  29  Charles  II. ,  ch.  3,  from  the  day  of  sign- 
ing the  same.  3  Bla.  Com.  420. 

In  the  revision  of  1846,  the  act  of  1799  was  broken  up, 
and  its  provisions  incorporated  in  two  different  acts.  Tho 
first,  eighth,  twelfth,  and  thirteenth  sections  are  retained  as 
the  first,  third,  eighth, and  ninth  sections  of  the  "act  making 
lands  liable  to  be  sold  for  the  payment  of  debts."  Nix.  Dig. 
722.  The  third  and  fourth  sections  of  the  act  of  1799  com- 
pose the  third  and  fourth  sections  of  the  act  respecting  exe- 
cutions. Nix.  Dig.  248. 

The  construction  of  these  provisions  cannot  be  affected  by 
their  change  of  collocation.  They  are  in  pari  mater  ia,  and 
form  parts  of  one  entire  system.  Their  construction  must 
be  the  same  as  if  they  remained,  as  originally  enacted,  parts 
of  the  same  statute.  The  acts  of  1846  are  cotemporancous, 
both  being  approved  upon  the  same  day.  If  the  fact  had 
been  otherwise,  no  inference  could  properly  be  drawn  from 
the  circumstance  that  one  statute  was  prior  in  time  to  the 
other.  Both  were  mere  re-enactments  of  long  subsisting 
laws,  whose  construction  was  well  settled  and  whose  operation 
was  regarded  as  beneficial. 

Reverting,  then,  to  the  plain  provisions  of  the  statutes, 
they  declare  that  the  judgment  shall  bind  the  lands  from  the 
time  of  the  actual  entry  of  the  judgment  on  the  records  of 
the  court.  Nix.  Dig.  722,  §  2.  It  constitutes  a  valid  en- 
cumbrance as  against  all  subsequent  alienations,  mortgages, 
and  judgments. 

And  if  the  land  be  sold  and  conveyed  by  virtue  of  an  exe- 
cution upon  the  judgment,  the  deed  will  vest  in  the  pur- 
chaser the  same  estate  in  the  premises  as  the  defendant  in 


MAY  TERM,  1862.  57 

Clement  v.  Kaighn. 

execution  was  entitled  to  at  the  entry  of  the  judgment.  Nix. 
Dig.  723,  §  8. 

But  if  the  plaintiff  in  the  first  judgment  neglect  to  sue 
out  execution,  he  loses  the  priority  to  which  he  is  otherwise 
entitled  over  subsequent  judgments  upon  which  executions 
^re  sued  out.  The  provisions  of  the  statute,  so  far  as  they 
are  material  to  the  present  inquiry,  are  as  follows:  "Whereas 
other  judgments,  by  virtue  of  which  the  sale  under  execution 
is  made,  might  affect  the  real  estate  so  sold,  if  no  provision 
be  made  to  remedy  the  same ;  and  whereas  persons  who  have 
not  taken,  or  will  not  take  out  executions  upon  their  judg- 
ments, ought  not  to  hinder  or  prevent  such  as  do  take  out 
executions  from  having  the  proper  effect  and  fruits  thereof, 
therefore  be  it  enacted,  that  the  purchaser  shall  hold  the 
real  estate  by  him  purchased  as  aforesaid  free  and  clear  of 
all  other  judgments  whatsoever  on  or  by  virtue  of  which  no 
execution  has  been  taken  out  and  executed  on  the  real  estate 
so  purchased."  Nix.  Dig.  724,  §  9. 

The  statute,  in  terms,  relates  merely  to  the  title  which  a 
purchaser  by  virtue  of  a  sheriff's  sale  under  an  execution  at 
law  shall  acquire.  It  declares  that  the  purchaser  under  a 
sale  by  virtue  of  an  execution  issued  upon  a  junior  judgment 
shall  hold  the  land  clear  of  all  judgments  upon  which  no 
execution  has  been  taken  out  and  executed  on  said  land.  In 
effect  that  gives  to  the  junior  judgment,  by  virtue  of  which 
the  land  is  sold,  priority  over  the  senior  judgment  upon 
which  no  execution  hath  been  sued  out  and  executed  upon 
the  land.  But  the  design  of  the  statute  is  to  give  to  the 
plaintiff  in  the  junior  judgment  upon  which  execution  is  first 
sued  out  "the  proper  effect  and  fruits  thereof."  The  opera- 
tion of  the  statute  cannot,  therefore,  be  limited  to  the  case 
of  a  sale  under  the  junior  judgment,  where  no  execution 
hath  been  sued  out  upon  the  senior  judgment  and  levied 
upon  the  land.  For  if  that  were  so,  it  would  enable  the 
plaintiff  in  the  prior  judgment  to  sue  out  and  levy  his  exe- 
cution upon  such  judgment  after  the  levy  under  the  execu- 
tion upon  the  junior  judgment,  and  thus  defeat  the  express 


58  CASES  IN  CHANCERY. 

Clement  v.  Kaighn. 

object  of  the  statute  by  preventing  the  plaintiff  in  the  junior 
execution  "from  obtaining  the  effect  and  fruit  thereof."  To 
give  effect,  therefore,  to  the  statute,  it  is  necessary  to  hold 
that  the  plaintiff  in  the  junior  judgment,  by  suing  out  and 
levying  the  first  execution  upon  the  land,  acquires  a  priority 
of  lien,  which  cannot  be  affected  by  any  execution  sul>se- 
quently  issued,  nor  by  any  mode  in  which  the  land  may  be 
sold.  The  issue  of  the  execution  upon  the  junior  judgment, 
and  its  delivery,  duly  recorded,  to  the  sheriff,  destroys  the 
priority  which  was  enjoyed  by  the  older  judgment,  and  trans- 
fers it  to  the  junior  judgment.  It  reverses  the  priority  of 
the  encumbrances,  no  matter  in  what  mode  the  land  may  be 
sold.  This,  I  think,  must  have  been  the  result  if  there  were 
no  further  provision  upon  the  subject.  But  the  statute  fur- 
ther declares,  that  where  sundry  executions  issue  against  the 
goods  and  lands  of  the  same  person,  then  the  like  priority 
and  preference  shall  be  given  as  is  given  in  writs  of  execution 
against  goods  only,  viz.  they  shall  bind  the  property  from 
the  time  that  the  writ,  duly  recorded,  shall  be  delivered  to 
the  sheriff.  Nix.  Dig.  248,  §  3,  4 ;  722,  §  3. 

It  is  well  settled,  in  the  construction  of  these  provisions, 
that  executions  against  real  estate  have  priority  according  to 
the  time  of  their  delivery,  duly  recorded,  to  the  sheriff,  irre- 
spective of  the  dates  of  the  judgments.  Elmer  v.  Bursen, 
Penn.  187 ;  Johnston  v.  Darrah,  6  Halst.  282 ;  Voorhees  v. 
Cha/ees,  4  Zab.  507. 

The  same  order  of  priority  must  obtain  where  the  sale  of 
the  land  is  made  by  virtue  of  a  decree  in  equity.  The  pro- 
ceeds of  the  sale  must  be  distributed  according  to  the  order 
of  the  legal  priority  of  the  encumbrances. 

The  encumbrance  of  Coulter's  judgment  upon  the  mort- 
gaged premises,  by  reason  of  his  failure  to  sue  out  execution, 
must  be  postponed  to  the  encumbrance  of  the  junior  judg- 
ments upon  which  executions  have  been  sued  out  and  exe- 
cuted. As  an  inevitable  consequence,  it  must  be  postponed, 
also,  to  the  encumbrance  of  the  complainant's  mortgage, 
which  is  prior  to  the  junior  judgments,  and  whose  priority 


MAY  TERM,  1862.  59 

Clement  v.  Kaighn. 

cannot  be  affected  by  any  ladies  of  the  plaintiff  in  the  prior 
judgment.  The  plaintiff  in  the  prior  judgment  can  prevent 
that  consequence  only  by  satisfying  the  subsequent  judgments. 

If  the  land  be  sold  by  virtue  of  an  execution  issued  upon 
the  junior  judgment,  the  purchaser  would  take  title  clear  of 
the  prior  judgments,  but  subject  to  the  mortgage.  In  effect, 
the  prior  judgment  would  be  postponed  not  only  to  the  sub- 
sequent judgments,  but  also  to  the  mortgage.  This  is  the 
inseparable  consequence  of  the  laches  of  tho  plaintiff  in  not 
suing  out  execution  upon  his  judgment.  The  same  result 
will  follow  from  a  sale  under  a  decree  of  this  court.  It 
never  could  have  been  contemplated  that  the  order  of  the 
encumbrances  should  be  changed  or  affected  by  the  tribunal 
out  of  which  the  execution  issued.  This  would  put  it  in  the 
power  of  the  mortgagee  or  of  the  prior  judgment  creditor, 
by  purchasing  the  mortgage,  to  defeat  the  purpose  of  the 
statute,  and  the  rights  of  the  junior  judgment  creditor  ac- 
quired under  it. 

The  order  of  priority  of  the  respective  .encumbrances  will 
be  decreed  accordingly. 

QTED  in  Slate  v.  Anderson,  11  Vroom  226 ;  Witts  v.  McKinney,  12  Vroom 


CASES 


ADJUDGED  IK 


THE  COURT  OF  CHANCERY 


OP  THE 


STATE  OF  NEW  JERSEY, 
OCTOBER  TERM,  1862. 


JOHN  L.  SM  ALLWOOD  and  others  tw.  ROBERT  LEWIN  and  others. 

A  married  woman  purchased  a  farm,  which  was  encumbered  by  a  mort- 
gage, which,  although  registered,  contained  an  important  proviso  de- 
signed to  secure  prompt  payment  of  the  interest,  which  proviso  was  not 
disclosed  by  the  registry  of  the  mortgage.  The  purchaser  took  the 
premises  subject  to  the  mortgage,  and  assumed  the  payment  of  it  as  a 
part  of  the  consideration  of  her  purchase.  On  a  bill  filed  to  foreclose 
the  mortgage,  in  which  the  purchaser  set  up  that  she  was  a  bona  fide 
purchaser  without  notice  of  the  proviso,  because  it  was  not  disclosed  by 
the  registry,  it  was  held — 

That  it  was  totally  immaterial  whether  the  mortgage  was  registered  or  not, 
the  purchaser  had  actual  notice  of  the  existence  of  the  mortgage. 

That  the  covenant  by  a  married  woman  does  not  impose  any  obligation 
upon  her  personally  is  immaterial ;  the  complainant  is  not  seeking  to 
enforce  the  obligation  as  against  her  personally,  but  to  have  the  land 
applied  to  the  satisfaction  of  the  debt  for  which  it  was  given. 

The  general  doctrine  is,  that  whatever  puts  a  party  upon  an  inquiry  amounts 
in  judgment  of  law  to  notice,  provided  the  inquiry  becomes  a  duty,  as  in 
the  case  of  purchasers  and  creditors,  and  would  lead  to  the  knowledge  of 
tlie>  requisite  fact  by  the  exercise  of  ordinary  diligence  and  understand- 
ing. So  notice  of  a  deed  is  notice  of  its  contents,  and  notice  to  an  agent 
is  notice  to  his  principal. 

The  answer  of  defendants  denying  notice  will  avail  nothing  against  this 

60 


OCTOBER  TERM,  1862.  61 


Smallwood  v.  Lewin. 


clear  and  well  settled  principle,  charging  them  with  notice  of  the  con- 
tents of  the  mortgage. 

The  object  of  the  Jaws  requiring  conveyances  to  be  recorded,  is  to  prevent 
imposition  on  subsequent  purchasers  and  mortgagees  in  good  faith 
without  notice  of  the  prior  conveyance,  but  not  to  protect  them  when  they 
have  such  notice.  It  is  no  part  of  their  office  to  furnish  information  of 
the  contents  of  deeds  and  mortgages  of  which  the  subsequent  purchaser 
has  actual  notice.  A  defective  registry  cannot  qualify  the  effect  of  actual 
notice. 


Blake  and  Williamson,  for  complainants. 
Keasbey,  for  defendants. 

THE  CHANCELLOR.  The  bill  is  filed  to  foreclose  a  mort- 
gage, given  by  Robert  Lewin  to  Silas  B.  Condict,  bearing 
date  on  the  first  day  of  May,  1857,  to  secure  the  payment 
of  a  bond,  of  even  date,  conditioned  for  the  payment  of 
$15,000,  on  the  first  of  May,  1864,  with  interest  at  seven 
per  cent,  per  annum,  payable  semi-annually  on  the  first  days 
of  June  and  December,  until  the  payment  of  the  principal. 
The  bond  also  contains  an  agreement,  that  should  any  default 
be  made  in  the  payment  of  the  interest,  or  of  any  part 
thereof,  on  any  day  whereon  the  same  is  made  payable,  and 
should  the  same  remain  unpaid  and  in  arrear  for  the  space 
of  thirty  days,  then  the  principal,  with  all  arrears  of  interest 
thereon,  shall,  at  the  option  of  the  obligee  or  his  representa- 
tives, become  due  and  payable  immediately  thereafter.  An 
abstract  of  the  mortgage  was  recorded  on  the  twentieth  of 
May,  1857,  stating  truly  the  amount  of  the  mortgage  and 
the  time  of  payment  of  principal  and  interest,  but  omitting 
the  special  agreement  by  which  it  was  stipulated,  that  upon 
failure  to  pay  any  instalment  of  interest  for  thirty  days  the 
principal  should  become  due  and  payable.  Subsequent  to 
this  registry,  on  the  first  of  August,  1857,  the  premises  were 
conveyed  by  the  mortgagor  to  Sarah  F.  Johnson,  subject  to 
the  complainant's  mortgage,  which  mortgage,  with  interest, 
the  grantee  assumed  to  pay  and  discharge  as  a  part  of  the 
consideration  of  the  conveyance.  Johnson  and  his  wife- 

VOL.  ii.  D 


62  CASES  IN  CHANCERY. 

Smallwood  «.  Lewin. 

tlie  grantees  in  tlie  deed,  by  their  answer,  deny  that  they, 
or  either  of  them,  had  any  notice  whatever,  actual  or  con- 
structive, of  the  special  agreement  contained  in  said  mortgage ; 
and  they  insist  that,  as  the  statute  requires  that  the  abstract 
recorded  shall  contain  the  time  when  the  mortgage  is  pay- 
able, tlie  defendants  were  entitled  to  rely  upon  the  abstract 
for  full  information  as  to  the  time  of  payment  and  all  condi- 
tions annexed  thereto ;  and  that,  as  to  the  special  agreement, 
Sarah  F.  Johnson  is  a  bona  fide  purchaser  without  notice, 
and  cannot  be  affected  thereby.  They  admit  the  covenant 
by  the  grantee  to  pay  the  mortgage  debt  with  interest, 
but  deny  that  the  covenant  imposed  any  obligation  upon  tlie 
grantee,  she  being  a  feme  covert. 

The  defence  is  not  that  the  registry  is  unauthorized  or 
illegal,  but  that  it  is  defective  in  not  stating  fuily  the  condi- 
tion of  the  mortgage.  It  is  not  claimed  that  the  mortgage 
has  lost  its  priority  by  virtue  of  the  defect  in  the  registry, 
but  that  it  can  operate  only  as  constructive  notice  ofwha't 
is  contained  in  it ;  that  it  stands  upon  the  same  footing  with 
a  defective  statement  by  the  registry  of  the  amount  of  the 
debt  or  of  the  premises  mortgaged,  which  will  defeat  pro  tcinto 
the  claim  of  the  mortgagee  to  priority. 

It  is  unnecessary,  for  the  purposes  of  this  cause,  to  decide 
whether  this  registry  is  or  is  not  defective,  and  whether  the 
defendant  is,  by  virtue  of  the  registry  act,  charged  with 
constructive  notice  of  the  terms  of  the  mortgage.  It  is 
totally  immaterial  whether  the  mortgage  was  registered  or 
not.  The  grantee,  at  the  time  of  the  conveyance,  had  actual 
notice  of  its  existence.  The  mortgage  debt  constitutes  part 
of  the  consideration  of  the  conveyance,  and  by  the  express 
terms  of  the  deed,  the  grantee  engages  to  pay  it.  That  her 
covenant  to  pay  the  debt  imposes  no  obligation  upon  her 
personally  is  immaterial.  The  complainants  are  not  seeking  tc 
enforce  the  obligation  as  against  her  personally,  but  to  have 
the  land  applied  to  the  satisfaction  of  the  debt  for  wlrich  it 
was  mortgaged.  The  only  question  is,  had  the  guarantee 
actual  notice  of  the  mortgage  ? 


OCTOBER  TERM,  1862.  63 


Smallwood  v.  Lewin. 


The  general  doctrine  is,  that  whatever  puts  a  party  upon 
an  inquiry  amounts  in  judgment  of  law  to  notice,  provided 
the  inquiry  becomes  a  duty,  as  in  the  case  of  purchasers  and 
creditors,  and  would  lead  to  the  knowledge  of  the  requisite 
fact  by  the  exercise  of  ordinary  diligence  and  understanding. 
So  notice  of  a  deed  is  notice  of  its  contents,  and  notice  to  an 
agent  is  notice  to  his  principal.  4  Kent's  Com.  179. 

The  answer  of  the  defendants  denying  notice  will  avail 
nothing  against  this  clear  and  well  settled  principle,  charging 
them  with  notice  of  the  contents  of  the  mortgage. 

But  it  is  urged,  that  although  the  defendants  had  actual 
notice  of  the  existence  of  the  complainant's  mortgage,  yet 
that  they  were  misled  by  the  contents  of  the  registry,  upon 
which  they  had  a  right  to  rely. 

•  The  evidence  of  Johnson  shows  clearly  that  neither  he 
nor  his  wife  was  in  point  of  fact  misled  by  the  registry.  It 
is  not  pretended  that  the  registry  was  consulted  before  the 
purchase  was  made.  He  says  that  the  first  time  he  saw  the 
registry  was  when  he  took  the  deed  to  his  wife  to  the  office 
to  be  recorded.  In  making  the  purchase,  she  must  have  re- 
lied upon  information  derived  from  the  vendor.  If  the  pur- 
chaser took  title  relying  upon  erroneous  information  derived 
from  the  vendor,  or  without  inquiry  as  to  the  terms  of  the 
mortgage,  she  must  bear  the  consequences  of  her  own  indis- 
cretion. The  registry,  it  is  clear,  did  not  contribute  in  any 
wise  to  mislead  her. 

Nor  do  I  think  the  case  would  have  been  at  all  altered,  if 
in  point  of  fact  the  registry  had  been  consulted  by  the  pur- 
chaser before  the  deed  was  delivered.  The  object  of  the 
laws  requiring  conveyances  to  be  recorded  is  to  prevent  im- 
position on  subsequent  purchasers  and  mortgagees  in  good 
faith  without  notice  of  the  prior  conveyance,  but  not  to  pro- 
tect them  when  they  have  such  notice.  It  is  no  part  of  their 
office  to  furnish  information  of  the  contents  of  deeds  and 
mortgages  of  which  the  subsequent  purchaser  has  actual 
notice.  The  complainants  rely  in  support  of  their  claim  to 
priority,  not  upon  the  constructive  notice  furnished  by  the 


64  CASES  IN  CHANCERY. 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

registry,  but  upon  actual  notice  to  the  purchaser  of  the  ex- 
i.- truce  of  their  mortgage.  If  there  was  no  registry,  the 
complainants'  title  to  priority,  and  right  to  enforce  their  en- 
cumbrance against  the  property  of  the  defendants  would  be 
clear.  A  defective  registry  cannot  qualify  the  effect  of  actual 
notice. 

There  is  nothing  in  the  case  made  by  the  defendants  that 
can  affect  the  complainants'  priority,  or  in  anywise  impair 
their  legal  rights. 

The  want  of  actual  knowledge,  on  the  part  of  the  defend- 
ants, of  the  terms  of  the  special  agreement,  had  it  existed 
when  the  forfeiture  was  incurred  by  a  failure  to  pay  the  in- 
stalment of  interest,  might  have  afforded  sufficient  grounds 
in  equity  for  relieving  the  defendants  from  the  penalty 
thereby  incurred.  But  it  is  shown  that  several  instalments 
of  interest  have  fallen  due  since  Mrs.  Johnson  acquired  title, 
and  that  the  defendants,  with  full  knowledge  of  the  sj>ecial 
agreement  in  the  complainants'  mortgage,  have  neglected  and 
refused  for  more  than  thirty  days  to  make  payment  of  the 
interest  so  due.  They  have  no  claim  to  equitable  relief. 

The  complainants  are  entitled  to  a  decree. 


THE  NEWARK  LIME  AND  CEMENT  MANUFACTURING  COM- 
PANY vs.  THE  MAYOR  AND  COMMON  COUNCIL  OF  THE 
CITY  OP  NEWARK. 

When  an  act  of  the  legislature  authorized  commissioners,  thereby  ap- 
pointed, to  select  a  site  for  a  bridge  over  the  Passaic  river,  within  cert;ii-i 
limits  in  the  city  of  Newark,  and  to  erect,  or  cause  to  be  erected,  a  bridge 
over  the  said  river,  and  lay  out  a  road  four  rods  wide  from  the  court- 
house in  Newark  to  the  place  where  the  bridge  was  to  be  built,  and  the 
commissioners,  having  located  the  bridge,  and  provided  for  its  erection, 
proceeded  to  lay  out  the  road,  and  by  the  survey  and  return  of  which, 
recorded  as  required  by  the  act,  it  appeared  that  the  highway  was  laid 
out  to  "  the  west  .end  of  the  bridge  " — 

uttcf,  that  inasmuch  as  the  survey  carries  the  highway  to  the  river,  wher- 
ever the  river  is  found,  there  the  highway  extends.  If  the  shore  is  ex 


OCTOBER  TERM,  1862.  65 

New?rk  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

tended  into  the  water  by  alluvial  deposits,  or  is  filled  in  by  the  proprietor 
of  the  soil,  the  public  easement  is,  by  operation  of  law,  extended  from 
its  former  terminus  over  tlie  new  made  land  to  the  water. 

The  owner  of  the  soil,  even  when  his  title  is  unquestioned,  cannot,  by  fill- 
ing in,  and  thus  extending  his  land  towards  the  water,  obstruct  the  pub- 
lic right  of  way  to  the  river. 

The  highway  being  required  to  be  sixty-six  feet  wide,  and  the  bridge  being 
only  required  to  be  thirty-two  feet  wide,  if  in  progress  of  time  it  had 
been  found  the  interest  of  the  bridge  proprietors  to  widen  the  bridge  to 
sixty-six  feet,  it  is  not  perceived  why  they  may  not  lawfully  have  done 
so,, and  required  the  full  width  of  the  highway  for  that  purpose.  The 
public  could  not  justly  have  contracted  the  highway  to  the  prejudice  of 
the  proprietors,  nor,  on  the  other  hand,  can  the  proprietors,  by  leaving 
a  part  of  the  highway  unappropriated,  impair  the  rights  of  the  public, 
much  less  can  they  despoil  the  public  of  their  rights  by  claiming  title 
hostile  to  those  under  whom  they  claim. 

The  proprietors  of  the  bridge  may  be  deemed  to  have  the  right  to  the  en- 
joyment, for  the  purposes  of  the  trust  committed  to  them,  of  the  whole 
terminus  of  the  highway  upon  the  river.  This  seems  necessarily  in- 
volved in  the  right  of -constructing  a  bridge  for  the  accommodation  of 
the  highway  across  the  river  to  any  width  they  may  deem  proper  over 
thirty-two  feet ;  but  this  possession  was  not  independent  of  or  hostile  to 
the  public  right,  and  no  right  adverse  to  the  public  could  be  acquired 
under  it. 

I£  under  such  circumstances,  the  bridge  proprietors,  or  those  claiming 
under  them,  set  up  title  adverse  to  the  public  easement,  and  especially 
if  they  invoke  the  aid  of  a  court  of  equity  to  protect  them  in  the  enjoy- 
ment of  such  pretended  right,  it  becomes  them  to  show  conclusively  the 
existence  of  the  right,  and  how  they  acquired  it. 


J.  P.  Bradley,  for  complainants. 
T.  Runyon,  for  defendants. 

THE  CHANCELLOR.  By  a  resolution  of  the  common  coun- 
cil of  the  city  of  Newark,  approved  on  the  fourth  of  October, 
1858,  the  street  commissioner  was  directed  to  notify  the 
owner  of  any  building,  fence,  or  other  encroachment  or  ob- 
struction, on  Bridge  street  below  Ogden  street,  to  remove 
the  same;  and  in  case  the  owner  neglected  or  refused  to  re- 
move the  same  within  thirty  days  from  the  time  of  receiving 
such  notice,  the  street  commissioner  was  directed  to  cause 
the  same  to  be  removed,  as  provided  by  an  ordinance  of  the 


6G  CASES  IX  CHANCERY. 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

city  relating  to  streets  and  highways.  In  obedience  to  this 
order,  the  street  commissioner  served  a  notice  upon  the  com- 
plainants to  remove  a  certain  building,  fence,  and  encroach- 
ment, in  front  of  their  property,  on  the  south  side  of  Bridge 
street.  With  this  notice  the  complainants  refused  to  comply, 
and  thereupon  the  street  commissioner  threatened  to  take 
down  and  remove  the  building,  and  open  Bridge  street  over 
a  strip  of  land  and  wharf  claimed  by  the  complainants  as 
their  property.  To  restrain  this  action  by  the  street  com- 
missioner the  bill  in  this  cause  was  filed,  and  an  injunction 
was  issued  pursuant  to  the  prayer  of  the  bill. 

The  case  made  by  the  bill  is  briefly  this : 

By  an  act  of  the  legislature,  passed  on  the  twenty-fourth 
of  November,  1790,  entitled  "an  act  for  building  bridges 
over  the  rivers  Passaic  and  Hackensack,  and  for  other  pur- 
poses therein  mentioned,"  commissioners  were  appointed 
with  powers,  among  other  things,  to  select  a  site  for  a  bridge 
over  the  Passaic  river,  within  certain  limits  designated  in  the 
act,  and  to  erect,  or  cause  to  be  erected,  a  bridge  over  the 
said  river.  They  were  also  empowered  to  lay  out  a  road 
four  rods  wide  from  the  court-house,  in  the  then  town  of 
Newark,  to  the  place  where  the  bridge  was  to  be  built  over 
the  Passaic  river,  thence  to  the  place  where  the  bridge  was 
to  be  built  over  the  Hackensack  river,  and  thence  to  Powles- 
liook.  The  act  required  a  return  of  the  road,  thus  laid  out 
by  the  commissioners,  to  be  made  and  recorded.  The  com- 
missioners, having  located  the  bridge  over  the  Passaic  at  the 
place  in  the  city  of  Newark  now  known  as  the  foot  of  Bridge 
street,  and  having  also  located  the  bridge  over  the  Hacken- 
sack,  in  pursuance  of  powers  conferred  on  them  by  the  act, 
on  the  nineteenth  day  of  February,  1793,  by  an  indenture 
of  that  date,  leased  the  bridges,  so  to  be  erected  and  built, 
to  certain  individuals,  and  contracted  with  said  lessees  for 
the  building  and  keeping  in  repair  of  said  bridges  for  the 
term  of  ninety-seven  years.  The  lessees,  prior  to  the  year 
1794,  proceeded  to  erect  the  bridge  over  the  Passaic  river,  at 
the  place  designated,  thirty-two  feet  in  width,  and  also  the 


OCTOBER  TERM,  1862.  67 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

bridge  over  the  Hackensack,  and  the  said  lessees  and  their 
successors  have  ever  since  kept  and  maintained  the  said 
bridges.  After  the  erection  of  the  bridge  over  the  Passaic 
river,  the  commissioners  proceeded  to  lay  out  the  road  au- 
thorized by  the  act,  and  filed  a  survey,  and  return  thereof, 
on  the  fifteenth  of  January,  1794,  which  was  duly  recorded. 
By  a  supplemental  act,  passed  on  the  tenth  of  November, 
1795,  the  commissioners  were  authorized,  in  consequence  of 
a  mistake  in  the  return  of  the  said  road,  to  correct  and  alter 
the  same,  so  as  to  take  in  and  comprehend  the  road  originally 
intended  by  them  to  be  laid  out,  and  to  have  the  returns 
thus  altered  recorded.  In  pursuance  of  the  power  thus  con- 
ferred, the  commissioners  rectified  the  mistake,  and  laid  out 
anew  the  said  road,  by  a  return  bearing  date  on  the  first  of 
July,  1796.  The  road,  as  laid  by  the  commissioners,  ex- 
tended, northwardly  along  Broad  street,  in  the  city  of  New- 
ark, to  the  place  where  Bridge  street  now  is,  and  thence 
eastwardly  to  the  first  pier  of  the  bridge  over  the  Passaic 
river,  forming  the  street  now  called  Bridge  street.  At  the 
time  the  road  was  surveyed  and  located,  the  first  pier  of  the 
bridge  was  about  eighty  feet  westerly  of  the  present  westerly 
abutment  of  the  bridge;  the  west  side  of  the  river  at  that 
point  having  been  docked  out  and  filled  in,  and  the  com- 
plainants, in  consequence  thereof,  having  filled  in  the  space 
originally  covered  by  the  west  end  of  the  bridge  from  the 
original  west  pier  to  the  present  west  abutment,  and  have, 
fcince  such  filling  in,  kept  the  said  space  in  repair  as  a  cause- 
way of  approach  to  the  said  bridge  and  as  part  thereof. 

The  bill  further  alleges  that,  soon  after  the  first  building  of 
the  bridge  over  the  river  Passaic,  the  proprietors  thereof  pro- 
cured title  to  a  strip  of  land  along  the  south  side  of  the  bridge 
at  its  western  terminus,  and  extending  eastwardly  to  low  water 
mark  in  the  Passaic  river ;  that  about  the  year  1800,  they 
erected  a  house  there  for  the  accommodation  of  their  keeper, 
and  that,  by  a  deed,  dated  on  the  tenth  of  August,  1842,  the 
proprietors  of  the  bridges  conveyed  the  said  strip  of  land, 
with  the  building  thereon,  to  the  complainants,  and  the  com- 


68  CASES  IN  CHANCERY. 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

plainanls  have  since  had  the  seizin  and  possession  thereof. 
At  the  time  of  the  purchase  by  the  complainants,  the  west 
abutment  of  the  bridge  was  twenty-five  feet  easterly  of  the 
east  end  of  the  building,  and  the  proprietors  of  the  bridge, 
two  or  three  years  before  the  filing  of  the  complainants'  bill, 
removed  the  abutment  twenty  feet  further  east,  to  its  present 
location.  Complainants  have  filled  in  and  docked  out  the 
strip  conveyed  to  them,  and  have  built  a  wall  to  prevent  the 
causeway,  which  is  tea  feet  higher  than  the  lot,  from  caving 
in  and  falling  upon  the  lot.  The  lot  is  now  eighty  feet  in 
length,  fourteen  feet  wide  at  the  west  end,  and  ten  feet  at  the 
east  end,  and  that  the  wharf  is  an  important  part  of  com- 
plainants' wharf. 

It  is  not  denied  that  Bridge  street,  like  all  the  other  streets 
in  Newark,  is  under  the  control  of  the  city  council,  and  that, 
in  directing  obstructions  and  encroachments  upon  the  street 
to  be  removed,  they  were  acting  within  the  legitimate  scope 
of  their  powers.  The  only  question  is,  whether  the  land 
AY  here  the  building  is  erected,  and  to  which  the  complainants 
claim  title,  is  or  is  not  a  part  of  Bridge  street.  The  city 
claims  that  the  street  extends  to  the  bridge,  as  now  con- 
structed, its  full  width  of  four  rods,  or  sixty-six  feet.  Within 
those  limits  the  complainants'  building  and  the  land  to  which 
they  claim  title  is  situate.  The  complainants  contend  that 
the  street  extends  only  to  the  point  where  the  westerly  abut- 
ment of  the  bridge  formerly  stood,  and  that  the  s]xu«  be- 
tween that  point  and  the  present  westerly  abutment  of  the 
bridge  is  a  caiKseway  of  approach  having  -a  lawful  width  of 
only  thirty-two  feet,  the  original  width  of  the  bridge  itself. 
It  appears,  by  the  defendants'  answer,  that  the  highway,  as 
laid  out  and  returned  by  the  commissioners,  did  not  stop  at 
the  pier  of  the  bridge,  but  was  extended  across  the  rivi-r. 
The  description  in  the  survey,  after  arriving  at  a  point  in 
Broad  street,  is  as  follows :  "  thence  north,  seventy-nine  de- 
grees and  fifty  minutes  east,  twelve  chains  and  eighty-six 
links,  to  the  first  pier  of  the  said  bridge  building  over  Passaic 
river;  thence  across  and  over  the  said  river  north,  eighty- 


OCTOBER  TERM,  1862.  69 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

four  degrees  and  fifteen  minutes  east,  seven  chains."  The 
description  in  the  amended,  return  is  as  follows:  "thence 
north,  eighty  degrees  east,  twelve  chains  and  seventy-seven 
links,  to  the  west  end  of  the  bridge;  thence  south,  eighty- 
four  degrees  east,  eight  chains  and  fifty-three  links,  to  the 
east  end  of  said  bridge."  The  description  in  both  returns  is 
substantially  the  same,  varying  slightly  in  course  and  dis- 
tance. The  monument  called  for  at  the  end  of  the  first  course 
is  not  the  abutment  of  the  bridge  nor  the  causeway  leading 
to  the  bridge,  but  in  the  one  return  it  is  the  pier,  or  face  of 
the  abutment  upon  the  river,  which  supports  the  bridge  ;  in 
the  amended  return  the  call  is  for  the  bridge  itself,  and 
thence  the  highway  extends  across  the  river  to  the  east  end 
of  the  bridge. 

It  is  objected  that  a  highway  cannot  be  laid  across  a  navi- 
gable river.  It  may  be  admitted  that  there  is  no  subsisting 
highway  for  horses  or  carriages  in  the  channel  of  the  river. 
But  it  is  enough,  for  all  the  purposes  of  this  cause,  that  the 
survey  carries  the  highway  to  the  river,  and  wherever  the 
river  is  found  there  the  highway  extends.  If  the  shore  is 
extended  into  the  water  by  alluvial  deposits,  or  is  filled  in 
by  the  proprietor  of  the  soil,  the  public  easement  is,  by 
operation  of  law,  extended  from  its  former  terminus  over 
the  new  made  land  to  the  water.  The  owner  of  the  soil,  in 
whom  the  unquestioned  title  is,  cannot,  by  filling  in,  and  thus 
extending  his  land  toward  the  water,  obstruct  the  public  right 
of  \vay  to  the  river.  The  People  v.  Lambier,  5  Denio  9. 

The  principle  was  recognized  and  adopted  by  the  Court  of 
Appeals  of  this  state  in  the  case  of  The  Morris  Caned  v. 
The  Inhabitants  of  Jersey  City,  1  Beasley  547. 

This  would  be  the  result  if  the  unquestioned  title  to  the 
soil  was  in  the  complainants.  But  it  is  quite  clear,  from 
the  evidence,  that  the  complainants  have  no  title  whatever 
to  the  freehold.  TJiey  claim  title  under  a  deed  from  the 
bridge  proprietors,  dated  on  the  tenth  of  August,  1842,  but 
not  acknowledged  until  the  nineteenth  of  November,  1844, 
about  fourteen  years  before  the  filing  of  their  bill.  The  bill 


70  CASES  IN  CHANCERY. 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

alleges,  that  soon  after  the  first  building  of  the  bridge,  the 
bridge  proprietors,  under  whom  the  complainants  claim,  ac- 
quired title  to  the  land  in  question;  but  how,  when,  or  from 
whom  the  title  was  acquired,  or  what  the  title  was,  they  do 
not  state.  The  allegation  of  the  bill  is,  that  soon  after  the 
first  building  of  the  bridge  over  the  Passaic  river,  the  pro- 
prietors thereof  procured  the  title  to  a  small  strip  of  land, 
along  the  south  side  of  the  bridge  at  its  westerly  terminus, 
about  fourteen  feet  in  width,  and  extending  in  length  from 
the  westerly  terminus  of  the  said  bridge,  along  the  south 
side  thereof  easterly,  to  low  water  mark  in  the  Passaic 
river,  upon  which  strip  of  land  the  said  proprietors  after- 
ward, in  or  about  the  year  1800,  erected  a  house  for  the  ac- 
commodation of  their  gate-keeper,  which  house  is  still  stand- 
ing. It  is  clearly  shown,  by  the  evidence,  that  the  house 
was  erected,  as  the  bill  alleges,  by  the  bridge  proprietors 
for  their  gate-keeper ;  that  it  stands  now  in  its  original  loca- 
tion ;  that  its  west  end  stood  on  the  same  bulkhead  with  the 
west  pier  of  the  bridge,  and  that  the  house  extended  east- 
ward over  the  waters  of  the  river,  and  that  the  tide  flowed 
under  it. v  Not  only  does  the  bill  fail  to  state  the  origin  of 
the  complainants'  title,  but  there  is  no  evidence  whatever, 
other  than  mere  occupancy,  in  support  of  the  claim  of  title. 
The  evidence  is  all  adverse  to  the  claim.  It  is  shown  that 
the  tide  flowed  under  the  hou.*e  years  after  ft  was  erected  ; 
that  vessels  drawing  four  to  six  feet  of  water  lay  at  the 
bulkhead  immediately  above  and  below  the  bridge.  How 
did  the  bridge  proprietors  acquire  title  to  the  soil  of  a  navi- 
gable-river below  high  water  mark?  It  was  clearly  in  the 
public  when  the  house  was  erected.  How  was  the  public 
right  divested?  The  ripariau  proprietor  might  have  ac- 
quired title  by  filling  in  and  reclaiming  land  from  the  river. 
But  no  title  to  the  shore  is  shown  or  pretended  to  have  been 
in  the  bridge  proprietors.  On  the  contrary,  the  complainants' 
own  evidence  shows  that,  when  the  highway  now  called 
Bridge  street  was  laid  out,  James  Davis  owned  the  land 
over  which  it  was  laid  from  Broad  street  to  the  river  and 


OCTOBER  TERM,  1862.  71 

Newark  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

on  each  side  of  the  present  bridge.  They  deduce  no  title 
from  Davis  or  his  heirs.  The  officers  and  stockholders  of 
the  bridge  company  have  been  examined.  They  state  that 
they  supposed  they  had  title,  but  not  one  of  them  intimates 
that  they  ever  acquired  a  title  by  grant,  purchase,  or  con- 
veyance to  a  foot  of  the  shore,  or  that  they  ever  paid  one 
dollar  consideration  for  it.  The  whole  evidence  renders  it 
clear  that  they  never  had  such  title. 

It  is  equally  clear  that  the  proprietors  acquired  no  title 
to  their  land,  either  from  the  lease  made  to  them,  by  the 
commissioners,  on  the  nineteenth  of  February,  1793,  or  from 
their  a<:t  of  incorporation,  of  the  seventh  of  March,  1797. 
The  effect  of  the  contract  was  simply  a  grant,  by  the  state 
to  the  proprietors,  of  the  right  of  constructing  the  bridges, 
and  the  franchise  of  taking  tolls  thereon  for  the  term  of 
ninety-seven  years,  and  a  covenant,  on  the  part  of  the  pro- 
prietors, to  construct  and  keep  in  repair  the  bridges  during 
the  term,  and  at  the  expiration  thereof  to  surrender  the 
property  into  the  hands  of  the  state.  Bridge  Proprietors  v. 
Tlie  State,  1  Zab.  384. 

All  that  the  bridge  proprietors  can  rightfully  claim  under 
the  contract,  as  against  the  public,  would  be  the  right  to  the 
unobstructed  use  of  so  much  of  the  public  highway  as  may 
be  necessary  for  the  full  and  unlimited  enjoyment  of  their 
franchise.  They  were  required,  by  the  terms  of  their  con- 
tract with  the  commissioners,  to  build  the  bridge  not  less 
than  thirty-two  feet  in  width ;  and  it  may  be  that,  in  con- 
tracting the  span  of  their  bridge,  and  lengthening  the  cause- 
way to  it,  they  are  not  bound  to  build  their  causeway  more 
than  the  required  width  of  the  bridge,  to  wit,  thirty-two 
feet,  and  that  they  were  justified  in  encroaching  upon  the 
highway  by  the  erection  of  their  toll-house  without  the 
limits  of  the  thirty-two  feet.  But  they  clearly  acquire  no 
right  by  which  they  can  defeat  the  public  easement. 

The  proprietors  were  invested  with  an  important  public 
trust,  the  continuance  of  a  public  highway  across  the  river 
by  means  of  a  bridge,  which  they  agreed  to  erect  and 


72  CASES  IN  CHANCERY. 

Newark'Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Newark. 

maintain,  and  upon  which  they  were  vested  with  the  fran- 
chise of  hiking  tolls.  The  highway  to  the  bridge  was  sixty- 
six  Art  wide.  It  was  so  required  to  be  under  the  act  by 
virtue  of  which  the  bridge  was  erected,  and  under  which  the 
proprietors  acquired  their  rights.  They  were  required  to 
build  the  bridge  only  thirty-two  feet.  If  in  the  progress  of 
time,  it  had  been  found  the  interest  of  the  proprietors  to 
widen  the  bridge  to  sixty-six  feet,  the  full  width  of  the 
highway,  it  is  not  perceived  why  they  might  not  lawfully 
have  done  so,  and  required  the  full  width  of  the  highway  for 
that  purpose.  The  public  could  not  justly  have  contracted 
the  highway  to  the  prejudice  of  the  proprietors;  nor,  on  the 
other  hand  can  the  proprietors,  by  leaving  a  part  of  the  high- 
way unappropriated,  impair  the  rights  of  the  public,  much 
less  can  they  despoil  the  public  of  their  rights  by  claiming 
title  hostile  to  those  under  whom  they  claim.  The  proprietors 
may  be  deemed,  by  virtue  of  their  lease,  to  have  gone  into 
possession,  and  to  have  the  right  to  the  enjoyment,  for  the 
purpose  of  the  trust  committed  to  them,  of  the  whole  ter- 
minus of  the  highway  upcn  the  river.  They  had  a  right 
to  occupy  and  use  the  whole  of  it  for  the  purposes  of  their 
incorporation.  This  possession  seems  necessarily  involved 
in  their  right  of  constructing  a  bridge,  for  tlie  accommoda- 
tion of  the  highway  across  the  river,  to  any  width  they  may 
deem  proper  over  thirty-two  feet.  But  this  possession  was 
not  independent  of  or  hostile  to  the  public  right,  and  no  right 
adverse  to  the  public  could  be  acquired  under  it.  If  under 
such  circumstances  the  bridge  proprietors,  or  those  claim- 
ing under  them,  set  up  title  adverse  to  the  public  easement, 
and  especially  if  they  call  upon  the  aid  of  a  court  of  equity  to 
protect  them  in  the  enjoyment  of  such  pretended  right,  it 
becomes  them  to  show  conclusively  the  existence  of  the  right, 
and  how  they  acquired  it. 

The  fact  that  the. bridge  proprietors  have  contracted  the 
water  span  of  their  bridge  by  supplying  what  was  originally 
the  west  end  of  the  bridge  within  the  limits  of  the  city  of 
Newark  with  a  solid  embankment  of  earth,  may  give  rise  to 


OCTOBER  TERM,  1862.  73 

Mallory's  Administrator  v.  Craige. 

questions  between  the  city  and  the  proprietors  touching  the 
obligation  to  repair,  or  the  control  of  the  city  over  the  cause- 
way thus  formed;  but  these  questions,  should  they  arise,  are 
proper  for  the  consideration  of  a  court  of  law,  and  are  in  no 
way  involved  in  the  present  controversy. 

I  am  clear  that  the  complainants  are  not  entitled  to  relief, 
and  that  their  bill  must  be  dismissed. 


MALLORY'S  ADMINISTRATOR  vs.  BALFOUR  CRAIGE  and  the 
ADMINISTRATOR  OF  BALFOUR  CRAIGE,  deceased. 

B.  C.,  being  indebted  to  the  complainant,  died  without  personal  estate,  but 
seized  of  a  lot  of  land  in  the  city  of  Newark,  which,  by  his  will,  he  de- 
vised to  his  infant  son.  After  his  death,  the  lot  was  taken  by  the  city 
of  Newark  for  a  street,  and  its  value  was  paid  into  the  hands  of  the  city 
treasurer,  according  to  a  provision  of  the  city  charter. 

On  a  bill  filed  by  the  complainant  to  obtain  satisfaction  of  his  debt  out  of 
the  money  in  the  hands  of  the  treasurer,  it  was  held,  that  the  proceeds  of 
the  land  in  the  hands  of  the  treasurer  are  assets  for  the  payment  of  the 
debts  of  the  deceased,  and  must  be  applied  accordingly.  The  treasurer 
was  decreed  to  pay  the  funds  into  the  hands  of  the  administrator  of  B. 
C.,  deceased. 

Although  it  seems  doubtful  whether  it  would  not  be  the  better  practice  to 
send  the  parties  to  the  Orphans  Court  for  a  final  settlement,  yet  the  gen- 
eral practice  appears  to  be  otherwise.  Ordinarily,  when  the  parties  are 
before  the  court,  the  final  account  is  settled  in  Chancery. 


T.  Runyon,  for  complainant. 

THE  CHANCELLOR.  The  debt  due  to  the  complainant's 
intestate  from  the  estate  of  Balfour  Craige,  deceased,  is  satis- 
factorily established  by  the  evidence.  Craige  died  leaving 
no  personal  estate  for  the  payment  of  his  debts,  but  seized  of 
a  lot  in  the  city  of  Newark.  After  his  death,  the  lot  was 
taken  by  the  city  of  Newark  for  a  public  street,  and  the  ap- 
praised value  of  the  land,  under  a  provision  of  the  city 
charter,  paid  into  the  hands  of  the  treasurer  of  the  city, 


74  CASES  IN  CHANCERY. 

Mallory's  Administrator  v.  Craige. 

where  it  still  remains.  The  land  was  devised  by  Craige  to 
his  infant  son,  in  whom  the  title  was  vested  at  Ihe  time  the 
land  was  taken  and  appropriated  to  public  use  by  the  city. 
The  devisee  took  the  title  charged  with  the  debts  of  the  tes- 
tator. The  proceeds  of  the  sale,  in  the  hands  of  the  treasurer, 
are  assets  for  the  payment  of  his  debts,  and  must  be  applied 
accordingly.  The  treasurer  will  be  decreed  to  pay  the  funds 
into  the  hands  of  the  administrator  of  Balfour  Craige,  de- 
ceased. 

The  bill  prays  that  the  assets  may  be  applied,  under  the 
direction  of  this  court,  to  the  payment  of  the  debts  of  the 
complainant  and  such  other  of  the  creditors  of  said  Balfour 
Craige,  deceased,  as  may  apply  to  the  court  for  the  purpose 
of  having  their  debts  against  the  estate  allowed.  My  doubt 
has  been  whether  it  would  not  be  the  better  practice  to  send 
the  parties  to  the  Orphans  Court  for  a  final  settlement.  But 
though  this  may  be,  and  sometimes  is  done,  the  general 
practice  appears  to  be  otherwise.  Ordinarily,  where  the 
parties  are  before  the  court,  the  final  account  is  settled  in 
Chancery.  Thomson  v.  Brown,  4  Johns.  C.  R.  630,  643;  1 
Story's  Eq.  Jar.,  §  543  a,  §  546  and  note  2;,  Ram  on  Assets, 
chap.  24,  §  2. 

In  this  case  the  fund  is  very  small,  and  it  does  not  appear 
that  there  are  any  other  creditors  except  the  complainant. 
The  testator  has  been  dead  many  years,  and  no  attempt 
seems  to  have  been  hitherto  made  to  have  his  fund  applied 
to  the  satisfaction  of  the  debts.  The  ends  of  justice  will 
probably  be  better  and  more  speedily  attained  by  having  the 
final  account  taken  in  this  court. 

There  must  be  a  reference  to  a  master  to  state  the  account 
of  the  debts  and  credits  of  the  estate,  giving  such  reasonable 
notice  as  he  may  deem  proper  for  the  creditors  to  come  in  and 
prove  their  debts. 


OCTOBER  TERM,  1862. 


Ilowell  v.  Howell. 


JOHN  S.  HOWELL  and  others  vs.  SARAH  M.  HOWELL  and 

others. 

It  is  a  well  established  doctrine  of  equity,  that  where,  upon  the  purchase 
of  real  estate,  the  title  is  taken  in  the  name  of  one  person,  and  the  pur- 
chase money  is  advanced  by  another,  the  parties  being  strangers  to  eacli 
other,  there  is  a  resulting  trust  in  favor  of  the  party  from  whom  the  con- 
sideration proceeds. 

When  the  purchase  is  made,  and  the  money  advanced  by  a  father,  and  the 
title  taken  in  the  name  of  a  son,  the  purchase  would  be  deemed  an  ad- 
vancement ;  but  when  the  purchase  is  made,  and  the  money  advanced 
by  the  son,  and  the  title  taken  in  the  name  of  the  father,  the  relation  of 
the  parties  will  not  defeat  the  resulting  trust. 

In  this  case  the  farm  was  purchased  by  two  sons,  for  their  own  use ;  they 
paid  all  the  purchase  money  that  they  could  raise,  and  in  order  to  enable 
them  to  pay  the  balance,  their  father  mortgaged  his  own  farm,  and  to 
secure  himself  for  such  advance,  took  the  title  for  the  farm  in  his  own 
name.  During  the  lifetime  of  the  father,  the  sons  treated  the  mortgage 
debt  as  their  own,  paid  the  interest  on  it,  and  also  used  and  enjoyed 
the  farm  purchased  as  their  own,  the  father  disclaiming  all  interest  in  or 
control  over  it.  The  father  afterwards  died  intestate  as  to  the  farm  so 
purchased,  but  by  a  will,  made  before  the  purchase,  he  devised  his  own 
farm  to  the  two  sons,  charged  with  the  payment  of  all  his  debts.  On  a 
bill,  filed  by  the  two  sons  against  the  other  heirs  of  their  father,  praying 
that  the  farm  be  declared  to  be  held  .by  the  heirs  of  the  father  in  trust 
for  the  two  sons,  it  was  Jield  that  the  other  heirs  of  the  father  would  be 
declared  trustees  for  the  complainants,  and  they  were  decreed  to  convey 
their  respective  interests  to  them. 

Although  ordinarily  the  trust  must  arise  at  the  time  of  the  making  of  the 
deed,  and  if  part  only  of  the  consideration  be  paid  at  the  time  by  the 
party  claiming  the  benefit  of  the  trust,  the  trust  results  in  his  favor 
only  to  that  amount,  although  he  subsequently  pays  the  whole  pur- 
chase money:  yet  in  this  case  the  whole  purchase  money  must  be  re- 
garded as  paid  by  the  complainants,  and  the  transaction  between  the 
sons  and  the  father  must  be  regarded  as  a  loan  by  the  father  to  the  sous 
to  enable  them  to  make  the  purchase. 


The  facts  of  this  case  are  fully  stated  by  the  Chancellor  in 
his  opinion. 

The  cause  was  argued  ex  parte  by 
T.  N.  McGarter,  for  complainants. 


76  CASES  IN  CHANCERY. 

Howell  v.  Howell. 

THE  CHANCELLOR.  The  complainants,  by  their  bill,  seek 
relief  against  the  operation  of  a  deed  of  bargain  and  sale, 
bearing  date  on  the  twentieth  of  March,  1858,  made  to  their 
father,  Lewis  Howell,  by  Dennis  Cochran,  for  a  farm  in  the 
township  of  Newton.  The  bill  charges  that  the  farm  was 
purchased  by  the  complainants  for  their  own  use,  and  that 
so  much  of  the  consideration  as  has  been  paid  was  paid  by 
them  ;  that  being  unable  to  raise  the  balance  of  the  purchase 
money  by  mortgage  upon  the  premises,  in  consequence  of  a 
pre-existing  encumbrance,  their  father  consented  to  aid  them 
by  raising  money  by  mortgage  upon  his  own  farm.  The 
money  was  so  raised,  and  by  way  of  security  therefor,  the 
deed  for  the  premises  purchased  of  Cochran  was  made  di- 
rectly from  him  to  the  father  of  the  complainants,  but  in 
reality  for  the  use  of  the  complainants  themselves.  Since 
the  conveyance  the  father  has  died  leaving  a  will,  executed 
some  years  prior  to  the  date  of  the  conveyance,  devising  to 
the  complainants  the  farm  so  mortgaged  by  him  charged 
with  the  payment  of  his  debts.  As  to  the  farm  conveyed  by 
Cochran,  he  died  intestate.  The  bill  prays  that  the  farm 
may  be  declared  to  be  held  by  the  heirs  of  Lewis  Howell  in 
trust  for  the  complainants,  and  that  they  be  decreed  to  con- 
vey their  respective  shares  therein  to  the  complainants,  or 
that  the  sums  paid  and  advanced  by  the  complainants  should 
be  declared  to  be  a  lien  upon  the  said  farm,  and  that  the  same 
should  be  sold  for  the  payment  thereof. 

The  case  made  by  the  bill  is  very  fully  established  by 
the  evidence.  The  complainants  purchased  the  farm,  paid 
the  purchase  money,  excepting  the  portion  raised  by  the 
father  upon  mortgage,  and  have  since  occupied  the  farm, 
making  permanent  improvements,  and  taking  the  rents  and 
profits  for  their  own  use.  It  is  shown  that  the  father  always 
treated  and  spoke  of  it  as  his  sons',  and  disclaimed  all  interest 
in  it  as  his  own  property. 

It  is  a  well  established  doctrine  of  equity,  that  where, 
upon  the  purchase  of  real  estate,  the  title  is  taken  in  the 
name  of  one  person,  and  the  purchase  money  is  advanced  by 


OCTOBER  TERM,  1862.  77 

Howell  v.  Howell. 

another,  the  parties  being  strangers  to  each  other,  there  is  a 
resulting  trust  in  favor  of  the  party  from  whom  the  consid- 
eration proceeds.  Hill  on  Trustees  91  ;  A  dams"  Equity  33 ; 
Story's  Eq.  Jur.,  §  1201. 

The  application  of  the  principle  to  this  case  is  not  affected 
by  the  relation  subsisting  between  the  parties.  Where  the 
purchase  is  made,  and  the  money  advanced  by  the  father, 
and  the  tide  taken  in  the  name  .of  the  son,  the  purchase 
would  be  deemed  an  advancement.  The  presumption  in  favor 
of  the  advancement  arises  not  only  from  the  relation  between 
the  parties,  but  from  the  moral  obligation  of  the  father  to 
provide  for  the  son.  But  where  the  purchase  is  made,  and 
the  money  advanced  by  the  son,  and  the  title  taken  in  the 
name  of  the  father,  the  relation  of  the  parties  will  not  defeat 
the  resulting  trust.  Adams'  Eq.  35 ;  Story's  Eq.  Jur.,  § 
1203. 

The  trust  must  arise  at  the  time  of  the  making  of  the 
deed ;  and  if  part  only  of  the  consideration  be  paid  at  the 
time  by  the  party  claiming  the  benefit  of  the  trust  the  trust 
results  in  their  favor  only  to  that  amount,  though  they  sub- 
sequently pay  the  whole  of  the  purchase  money.  But  in 
this  case  the  whole  purchase  money  must  be  regarded  as  paid 
by  the  complainants'.  The  transaction  between  the  sons  and 
the  father  must  be  regarded  as  a  loan  or  an  advancement 
by  the  father  to  the  sons,  to  enable  them  to  make  the  pur- 
chase. The  sons  were  to  provide  for  the  debt  incurred  by  the 
father,  and  they  did  provide  for  it  by  paying  the  interest  as 
it  accrued,  the  principal  being  not  yet  due.  At  the  time  of  the 
transaction,  the  father  had  made  his  will,  by  which  he  had 
devised  the  farm,  upon  which  he  gave  the  mortgage  to  the 
the  complainants,  upon  condition  of  their  paying  all  the 
debts  of  his  estate.  That  will  continued  in  force  at  his  death. 
The  very  money,  therefore,  which  the  father  furnished  was 
at  the  time  of  the  transaction,  and  still  is  an  encumbrance 
upon  the  lands  devised  to  the  complainants.  But  the  will 
was  executed  before  the  lands  now  in  question  were  pur- 
chased, and  it  contains  no  residuary  or  other  clause  which 

VOL.  ii.  E 


78  CASES  IX  CHANCERY. 

McDermott  v.  French. 

•will  vest  the  tide  in  the  sons.  Had  that  been  done,  the  de- 
sign of  the  transaction  would  have  been  effected,  and  the 
intention  of  the  parties  carried  into  effect.  But  as  the  title 
now  stands,  the  sons  advanced  the  purchase  money,  and  the 
lands  descend,  as  the  estate  of  the  father,  equally  to  all  his 
children  and  their  representatives. 

Although  it  is  necessary  to  create  the  trust  that  the  funds 
should  be  paid  by  the  cestui  que  trust  at  the  time  of  the  pur- 
chase, yet  they  may  be  supplied  by  a  third  person,  or  even 
by  the  nominal  purchaser  on  credit.  Page  v.  Page,  8  N. 
I  lamp.  187 ;  Runnetts  v.  Jackson,  1  Howard  (Muss.)  358. 

So  the  trust  will  result,  though  a  part  of  the  money  be  paid 
in  cash,  and  a  note  given  for  the  residue.  Lounsberry  v.  Purdy, 
16  Barb.  S.  C.  380. 

The  heirs-at-law  of  Lewis  Howell,  the  father,  who  are  made 
defendants,  will  be  declared  to  be  trustees,  as  to  their  re- 
spective shares,  for  the  complainants,  and  will  be  decreed  to 
convey  their  respective  shares  to  them.  As  the  land  mort- 
gaged by  the  father  is  devised  to  the  complainants  subject  to 
all  the  debts  of  the  estate  of  the  testator,  it  would  seem  that 
the  interests  of  all  the  heirs  are  sufficiently  protected  against 
any  prejudice  from  the  debt  incurred  by  the  testator  in  aid 
of  the  complainants.  But  to  guard  against  any  possible  con- 
tingency, it  will  be  proper  so  to  frame  the  decree  as  to  require 
the  conveyance  to  be  made  to  the  complainants  subject  to  the 
payment  of  the  mortgage  debt,  or  after  that  debt  shall  have 
been  satisfied  by  the  complainants,  and  the  estate  discharged 
therefrom. 


WILLIAM  MCDERMOTT  vs.  MARY  I.  FRENCH  and  others. 

The  husband  is  a  necessary  party  to  a  bill  filed  by  the  grantee  of  the  hus- 
band against  the  wife  for  the  partition  of  lands  alleged  to  have  been  held 
by  the  husband  and  wife  as  tenants  in  common.  The  wife  can  only 
defend  the  suit  jointly  with  her  husband,  except  under  special  circum- 
stances. 


OCTOBER  TERM,  1862.  79 

McDermott  v.  French. 

A  wife,  though  living  separate  from  her  husband  even  though  she  has 
been  separated  by  deed,  cannot  be  sued  alone ;  her  husband  must  be 
joined,  if  only  for  conformity. 

If  an  estate  in  fee  be  given  to  a  man  and  his  wife,  or  a  joint  purchase  be 
made  by  them  during  coverture,  they  are  neither  properly  joint  tenants 
nor  tenants  in  common,  for  they  are  in  law  but  one  person,  and  cannot 
take  by  moieties.  They  are  both  seized  of  the  entirety,  and  neither  can 
sell  without  the  consent  of  the  other,  and  the  survivor  takes  the  whole. 
A  conveyance  by  either  alone  is  inoperative. 

The  estate  thus  vested  in  the  husband  and  wife  by  a  conveyance  to  them 
during  coverture  is  not  affected  by  the  act  of  1812  respecting  joint  ten- 
ants and  tenants  in  common  (Nix.  Dig.  136,  \  34).  That  act  extends  to 
joint  tenancies  only,  and  not  to  tenancies  by  entireties. 

But  when  an  estate  is  conveyed  to  a  man  and  woman  before  marriage,  who 
afterwards  intermarry,  as  they  took  by  moieties  they  will  continue  to 
hold  by  moieties  after  marriage. 

So  it  seems  that  a  husband  and  wife  may,  by  express  words,  be  made  ten- 
ants in  common  by  gift  to  them  during  coverture. 

'When  a  bill  for  partition  alleges  that  the  husband  and  wife  were  seized  as 
tenants  in  common  by  virtue  of  a  conveyance  to  them  made  during  co- 
verture, that  fact  is  not  necessarily  inconsistent  with  the  creation  of  a 
tenancy  in  common,  and  on  demurrer  to  such  a  bill  it  will  be  assumed 
that  apt  words  were  used  in  the  conveyance  for  that  purpose.  If  in 
truth  the  conveyance  was  made  to  the  husband  and  wife  during  cover- 
ture, and  apt  words  for  the  creation  of  a  tenancy  in  common  were  not 
used,  the  fact  should  be  shown  by  way  of  plea. 


T.  N.  HcCarter,  for  the  demurrer. 

D.  A.  Hayes,  contra. 

THE  CHANCELLOR.  A  demurrer  is  filed  to  a  bill  for  par- 
tition, brought  by  a  grantee  of  the  husband  against  the  wife. 

The  first  ground  of  demurrer  is  fatal.  The  husband  is  a 
necessary  party.  The  wife  cannot  be  sued  alone.  She  can 
defend  the  suit*  except  under  special  circumstances,  only 
•jointly  with  her  husband.  Mitford's  Eq.  PL  105 ;  Story's 
Eq.  PL,  §  71. 

The  rule  observed  in  recent  cases  is,  that  a  wife  though 
living  separate,  even  though  she  has  been  separated  by  deed, 
cannot  be  sued  alone ;  her  husband  must  be  joined,  if  only 
for  conformity.  Calvert  on  Parties  269. 

The   second   ground   of   demurrer   is,  that  the   estate   in 


80  CASES  IN  CHANCERY. 

McDcrmolt  t.  French. 

question  is  not  susceptible  of  partition.  The  bill  allegro 
that  the  husband  and  wife  were  seized  in  fee  of  the  premises, 
as  tenants  in  common,  by  virtue  of  a  certain  indenture,  made 
and  executed  by  Samuel  D.  Burchard  and  Agnes  his  wife, 
bearing  date  on  the  first  day  of  September,  1858 ;  and  tluit 
on  or  about  the  first  day  of  September,  1860,  the  husband, 
so  being  seized  as  tenant  in  common  with  the  wife,  by  in- 
denture, under  his  hand  and  seal,  conveyed  to  the  complain 
ant  all  the  right,  title,  and  interest  of  the  husband  in  the 
premises. 

If  an  estate  in  fee  be  given  to  a  man  and  his  wife,  or  a 
joint  purchase  be  made  by  them  during  coverture,  they  are 
neither  properly  joint  tenants  nor  tenants  in  common,  for 
they  are  but  one  |>erson  in  law,  and  cann.ot  take  by  moieties. 
They  are  both  seized  of  the  entirety,  and  neither  can  sell 
without  the  consent  of  the  other,  and  the  survivor  takes  the 
whole.  Co.  LUL  187,  a,  b;  2  Cruise's  Dig.,  tit.  18,  ch.  1,  § 
46;  5  Cruise,  tit.  36,  ch.  7,  §  27 ;  2  Bla.  Com.  182;  2  Kenfs 
Com.  132 ;  Green  ex  dem.  Crew  v.  King,  2  Black.  R.  1211  ; 
Den  v.  Hardenbergh,  5  Halst.  42. 

Where  a  husband  and  wife  are  thus  seized  of  the  entirety, 
a  conveyance  by  either  is  inoperative.  Back  v.  Andre,  2 
Vern.  1 20 ;  Doe  v.  Panatt,  5  Term  Rep.  654 ;  Jackson  v. 
Stevens,  1 6  Johns.  R.  115;  Rogers  v.  Benson,  5  Johns.  C.  R. 
437 ;  Dias  v.  Glover,  1  Ho/man's  Ch.  R.  76. 

And  the  estate  thus  vested  in  the  husband  and  wife,  by 
a  conveyance  to  them  during  coverture,  is  not  affected  by  the 
act  of  1812  respecting  joint  tenants  and  tenants  in  common. 
Nix.  Dig.  1 3(5,  §  34.  That  act  extends  to  joint  tenancies 
only,  and  not  to  tenancies  by  entireties.  Den  v.  Harden- 
bergh, 5  Haht.  47 ;  Shaw  v.  Hersey,  5  Mass.  521 ;  Jackson 
v.  Stevens,  16  Johns.  R.  110. 

But  where  an  estate  is  conveyed  to  a  man  and  woman 
before  marriage,  who  afterwards  intermarry,  as  they  took 
by  moieties,  they  will  continue  to  hold  by  moieties  after 
marriage.  1  Inst.  187,  c;  Moody  v.  Moody,  Ambler  649. 

So   it   seems   that  a   husband  and  wife  may,  by  express 


OCTOBER  TERM,  1862. 


Wood  v.  Warner. 


words,  be  made  tenants  in  common  by  gift  to  them  during 
coverture.  4  KenCs  Com.  363;  1  Preston  on  Estates  132;  2 
Bla.  Com.  182,  Sharxwood's  note. 

The  bill  alleges  that  the  husband  and  wife  were  seized  as 
tenants  in  common  by  virtue  of  a  conveyance  made  to  them. 
Even,  therefore,  if  it  appears  by  the  bill  that  the  conveyance 
was  made  during  coverture,  that  fact  is  not  absolutely  {neon- 
s'stent  with  the  creation  of  a  tenancy  in  common.  As  there 
is  a  direct  averment  that  the  conveyance  created  a  tenancy  in 
common,  it-  must  be  assumed  that  apt  words  were  used  in  the 
deed  for  that  purpose.  This  objection  cannot  prevail  upon 
demurrer.  If  in  truth  the  conveyance  was  made  to  the  hus- 
band and  wife  during  coverture,  and  apt  words  for  the  crea- 
tion of  a  tenancy  in  common  were  not  used,  the  fact  should 
be  shown  by  way  of  plea. 

Upon  the  first  ground,  the  demurrer  is  allowed. 


Ross  W.  WOOD  and  RICHARD  D.  WOOD  vs.  JOHN  A.  WARNER, 
BERNARD  VETTERL,EIN,  and  CHARLES  F.  TAY. 

Complainants  and  defendants,  being  joint  owners  of  an  island  in  the  Carib- 
bean sea,  said  to  contain  large  deposits  of  guano,  entered  into  an  agree- 
ment that  complainants  should  conduct  the  business  of  collecting  and 
selling  the  guano  for  the  mutual  benefit  of  all  concerned,  and  that  the 
profits  and  losses  of  the  business  should  be  divided  among  all  the  parties 
according  to  their  respective  interests,  and  that  complainants  should  have 
a  lien  on  the  island  and  all  the  personal  property  used  in  their  business 
for  any  advances  made  by  them.  The  business  generally  proving  un- 
profitable, the  complainants  filed  their  bill  against  the  defendants  (who 
are  citizens  of  this  state,  and  appeared  regularly  to  the  suit,)  praying  an 
account  and  a  decree  against  the  defendants  for  their  proportion  of  the 
losses,  and  for  a  sale  of  the  island,  its  contents,  and  the  personal  property 
connected  therewith — 

Jfcld,  that  it  is  no  objection  to  the  court's  taking  an  account,  and  making 
a  decree  in  the  cause,  that  the  property  is  out  of  the  jurisdiction  of  the 
court,  so  that  the  decree  cannot  be  enforced  in  rem. 

The  strict  primary  decree  of  a  court  of  equity  is  in  personam,  and  not  in 
rem,  and  the  authority  of  this  court  to  deal  with  contracts  in  relation  to 
land  not  within  the  jurisdiction  of  the  court  is  fully  established. 


82  CASES  IN  CHANCERY. 


Wood  r.  Warner. 

The  contract  between  the  parties  and  the  circumstances  of  the  case  held  to 
be  such  as  to  entitle  the  complainants  to  close  their  operations,  and  seek 
an  account  and  settlement  in  this  court. 


Williamson,  for  complainants. 
Zabriskie,  for  defendants. 

THE  CHANCELLOR.  The  bill  of  complaint  charges  that, 
in  the  year  1857,  Ross  W.  Wood,  one  of  the  complainants, 
an<l  Alexander.  H.  Grant,  copartners  in  trade  in  the  city  of 
New  York,  under  the  name  and  style  of  Wood  &  Grant,  be- 
came interested  in  the  island  of  Sombrero,  air1  uninhabited 
island  in  the  Caribbean  sea,  said  to  contain  large  and  valuable 
deposits  of  guano ;  that  John  E.  Gowan  &  Co.,  of  Boston, 
claiming  to  have  taken  possession,  and  to  be  the  owners  of 
said  island,  and  to  have  taken  the  necessary  steps  with  the 
state  department  of  the  government  of  the  United  States  to 
insure  the  protection  of  said  island  to  the  said  John  E.  Gowan 
&  Co.,  and  Andrew  C.  Elliott,  and  one  George  R.  Field,  also 
claiming  to  have  some  right  or  title  in  said  island,  it  was 
agreed  between  the  said  Wood  &  Grant  and  the  said  John 
E.  Gowan  &  Co.,  Field,  and  Elliott,  that  Gowan  &  Co.  should 
sell  to  Wood  &  Grant  one  half  interest  of  the  whole  of  said 
Wand,  upon  the  following  conditions,  viz.'  that  Wood  &  Grant 
should  execute  their  notes  for  $30,000,  which  notes  should 
become  the  property  of  Gowan  &  Co.,  Field,  and  Elliott,  in 
the  following  proportions,  viz.  Gowan  &  Co.  five-eighths, 
Elliott  two-eighths,  and  Field  one-eighth ;  that  Wood&  Grant 
should  raise  a  working  capital  of  $20,000,  to  be  used  in  the 
business  of  collecting  and  shipping  guano  from  said  island ; 
that  upon  the  execution  of  said  notes  for  $30,000,  and 
agreeing  to  raise  the  said  working  capital  of  $20,000,  Wood 
&  Grant  should  own  and  be  possessed  of  one  half  of  the  island 
and  its  contents,  and  all  benefits  to  be  derived  therefrom  ; 
and  that  Wood  &  Grant  should  have  the  sole  control  of  the 
working  and  management  of , the  whole  island,  for  the  benefit 
of  all  the  parties  interested,  and  that  the  net  profits  of  work- 


OCTOBER  TERM,  1862.  83 

Wood  v.  Warner. 

ing  the  island,  or  the  losses  arising  from  the  sale  of  either  the 
island  or  its  contents,  should  be  divided  as  follows,  viz.  one 
half  to  Wood  &  Grant,  one  quarter  to  John  E.  Gowan  & 
Company,  and  the  remaining  quarter  to  Field  and  Elliott.  It 
was  further  agreed  between  the  parties,  that  Wood  &  Grant 
should  have  the  sole  right  to  self,  lease,  convert  into  a  joint 
stock  company,  or  work  the  said  island  for  the  mutual  benefit 
of  the  parties  interested.  Wood  &  Grant,  haying  paid  the 
consideration  agreed  upon,  on  the  fifth  of  August,  1857,  re- 
ceived a  deed  for  one  half  of  the  island.  They  also  advanced 
the  working  capital  of  $20,000,  and  carried  on  the  business 
of  digging  and  shipping  guano,  for  the  benefit  of  the  concern, 
until  the  twelfth  of  October,  1859,  when  their  interest  passed 
into  the  hands  of  the  complainants,  by  whom  the  business 
continued  to  be  carried  on  with  the  consent  of  the  proprietors. 
By  subsequent,  transfers,  the  complainants  became  the  owners 
of  three -fourths  of  the  property  invested  in  the  enterprise, 
and  Warner,  and  the  other  defendants  holding  under  him,  of 
the  other  fourth.  The  bill  charges  that,  from  the  first  of 
February,  1860,  till  the  twentieth  of  July,  1861,  the  concern 
lost  $55,391:,  and  that  at  the  latter  date  Warner  was  indebted 
to  the  complainants  over  $20,000 ;  that  the  complainants  are 
in  possession  of  the  island,  and  of  a  large  amount  of  personal 
property  connected  with  the  business,  upon  which,  by  an 
agreement  with  Warner,  they  have  a  lien  for  all  moneys  ad- 
vanced by  them  in  carrying  on  the  business.  The  prayer  of 
the  bill  is,  that  an  account  may  be  taken ;  that  the  com- 
plainants may  be  paid  the  sum  that  may  be  found  due  to 
them ;  that  the  defendants  may  contribute  for  the  advances 
made  and  losses  sustained ;  that  in  default  of  payment,  the 
right  and  interest  of  the  defendants  in  the  island,  its  contents, 
and  the  property  connected  therewith,  may  be  sold  to  pay 
the  complainants  the  amount  decreed  to  be  due  them,  and 
that  they  may  have  such  other  relief  as  may  be  agreeable  to 
equity. 

There   is   no   question  as  to  the  interest  of  the  parties, 
respectively,  in  the  matter  in  controversy,  and  but  little  as 


84  CASES  IN  CHANCERY. 

Wood  t.  Warner. 

to  the  material  facts  upon  which  the  complainants  found  their 
claim  fur  relief.  The  questions  raised  by  the  answer  relate 
mainly  to  the  mode  of  taking  the  account,  and  as  no  instruc- 
tions are  asked  upon  that  subject,  it  will  be  unnecessary  tc 
dispose  of  them. 

The  only  questions  submitted  for  decision  at  this  time  re- 
late to  the  jurisdiction  of  the  court  and  the  right  of  the  com- 
plainants to  an  account. 

Upon  the  question  of  jurisdiction  I  entertain  no  doubt. 
The  complainants  come  before  the  court  to  obtain  a  settle- 
ment of  accounts  and  a  decree  for  the  payment  of  the  balance 
dno.  The  defendants  are  all  citizens  of  this  state,  and  their 
appearance  has  been  duly  effected.  It  nray  be  that  the  court 
cannot  enforce  its  own  decree  in  rern  by  making  sale  of  the 
defendants'  title  to  the  island  of  Sombrero,  as  prayed  for  in 
the  bill.  I  do  not  understand  the  complainants'  counsel  as 
insisting  upon  that.  But  that  is  no  objection  against  taking 
an  account  and  making  a  decree  in  the  cause.  The  strict 
primary  decree  of  a  court  of  equity  is  in  personam,  and  not 
in  rem.  In  Penn  v.  Lord  Baltimore,  1  Vesey  sen.  444,  the 
court  decreed  the  specific  performance  of  articles  of  agree- 
ment between  the  proprietors  of  Pennsylvania  and  Maryland 
relating  to  the  boundaries  of  the  two  provinces.  In  deliver- 
ing his  opinion  in  that  case,  Lord  Hardwicke  said  :  "As  to 
the  court's  not  enforcing  the  execution  of  their  judgment, 
if  they  could  not  at  all,  I  agree  it  would  be  in  vain  to  make 
a  decree,  and  that  the  court  cannot  enforce  their  own  decree 
in  rem  in  the  present  case;  but  that  is  not  an  objection 
against  making  a  decree  in  the  cause;  for  the  strict  primary 
decree  in  this  court,  as  a  court  of  equity,  is  in  pcrsonam. 
Long  before  this  court  could  issue  to  put  into  possession  in  a 
suit  of  lands  in  England,  which  was  first  beguu  and  settled 
in  the  time  of  James  I.,  but  ever  since  done  by  injunction  or 
writ  of  assistance  to  the  sheriff;  but  the  court  cannot,  to  this 
day,  as  to  lands  in  Ireland  or  the  plantations.  In  Lord 
King's  time,  in  the  case  of  Richardson  v.  Hamilton,  attorney 
general  of  Pennsylvania,  which  was  a  suit  of  land  and  a 


OCTOBER  TERM,  1862.  85 


Wood  v.  Warner. 


house  in  the  town  of  Philadelphia,  the  court  made  a  decree, 
though  it  could  not  be  enforced  in  rem.  In  the  case  of  Lord 
Anglesey,  of  land  lying  in  Ireland,  I  decreed  for  distinguish- 
ing and  settling  the  parts  of  the  estate,  though  impossible  to 
enforce  that  decree  in  rem;  but  the  party  being  in  England, 
I  could  enforce  it  by  process  of  contempt  in  personam  and 
sequestration,  which  is  the  proper  jurisdiction  of  the  court." 

"  The  proposition/'  says  Mr.  Justice  Story,  "  mny  be  laid 
down  in  the  most  general  form,  that  to  entitle  a  court  of 
equity  to  maintain  a  bill  for  the  specific  performance  of  a 
contract  respecting  land,  it  is  not  necessary  that  the  land 
should  be  situate  within  the  jurisdiction  of  the  state  or 
county  where  the  suit  is  brought.  It  is  sufficient  that  the 
parties  to  be  affected  and  bound  by  the  decree  are  resident 
within  the  state  or  county  where  the  suit  is  brought;  for  in 
all  suits  in  equity  the  primary  decree  is  in  personam,  and 
not  in  rem"  1  Story's  Eq.  Jiw.,  §  744. 

These  cases  establish  the  authority  of  the  court  to  deal 
with  contracts  in  relation  to  land  not  within  the  jurisdiction 
of  the  court. 

Whether  the  court  can  at  all  interfere,  either  with  the  sale 
of  the  land  or  the  disposition  of  the  proceeds  of  such  sale,  it 
is  unnecessary  now  to  consider.  The  power  of  the  court  to 
decree  the  settlement  of  the  accounts  between  the  parties, 
and  the  payment  of  the  balance,  if  any  found  due,  and  to 
enforce  such  a  decree  in  personam  cannot  be  questioned. 

It  is  insisted  by  Warner,  in  his  answer,  that  by  the  terms 
of  the  agreement  of  the  twenty-third  of  May,  1857,  all  ad- 
vances by  the  complainant  were  to  be  a  lien  upon  the  property, 
and  to  be  reimbursed  out  of  the  business;  and  that,  there- 
fore, he  cannot  be  held  responsible  for  any  advances  made 
beyond  the  value  of  the  property.  But  it  is  expressly  stipu- 
lated, by  the  agreement,  that  the  losses,  as  well  as  the  net 
profits  arising  from  the  sale  either  of  the  island  or  of  its 
contents,  shall  be  divided  between  the  parties,  in  proportion 
to  their  respective  interests  in  the  concern.  That  consequence 
would  seem  necessarily  to  result  from  the  very  nature  of  the 


86  CASES  IN  CHANCERY. 

Wood  v.  Warner. 

contract,  even  if  there  had  been  no  stipulation  to  that  effect 
The  parties  were  in  fact  partners  in  the  enterprise,  and  were 
to  share  in  the  profits  in  proportion  to  their  respective  in- 
terests in  the  capital  invested.  Wood  &  Grant,  whom  the 
complainants  represent  were,  by  the  terms  of  the  contract, 
to  own  one  half  of  the  island  and  its  contents,  and  all  benefits 
to  be  derived  therefrom,  and  to  have  the  entire  control  of 
the  working  and  management  of  the  whole  for  the  benefit 
of  themselves  and  all  the  parties  interested.  In  the  absence 
of  any  express  stipulation  that  Wood  &  Grant  should  bear 
all  losses  that  might  be  incurred,  or  that  the  work  should  be 
carried  on  at  their  own  expense  and  hazard,  the  fair  impli- 
cation would  be,  that  the  losses  are  to  be  shared  by  all  the 
parties  concerned  in  proportion  to  their  respective  interests. 
So  far  as  regards  a  participation  in  profits  and  losses,  the 
contract  virtually  constitutes  a  partnership  as  between  the 
parties  themselves,  although  there  was  no  partnership  name, 
and  it  was  expressly  stipulated  that  no  one  of  the  parties 
should  have  power  to  bind  the  others. 

But  the  objection  to  an  account  was  limited  by  counsel, 
upon  the  argument,  to  the  one  ground,  that  in  the  present 
state  of  the  business  the  complainants  are  not  entitled  to  an 
account.  The  objection  is  founded  on  the  terms  of  the  agree- 
ment of  the  fifth  of  June,  1857.  By  the  terms  of  that 
agreement,  Wood  &  Grant  were  to  furnish  a  working  capital 
of  $20,000,  to  be  used  in  carrying  on  the  business  of  collect- 
ing and  shipping  guano;  they  were  to  have  the  sole  control 
of  the  working  and  management  of  the  whole  concern  for 
the  mutual  benefit  of  all  concerned,  with  the  right  to  sell, 
lease,  convert  into  a  joint  stock  company,  or  work  for  mutual 
benefit.  It  is  urged  that  they  have  neither  sold  nor  leased, 
and  that  they  were  therefore  bound  to  continue  to  carry  on 
the  business  for  mutual  benefit,  and  that  they  are  not  entitled 
to  an  account  before  the  close  of  the  business;  that  a  court 
of  equity  will  not  permit  them,  merely  because  the  business 
is  depressed  and  temporarily  unproductive,  to  close  opera- 
tions under  their  contract,  to  call  their  associates  in  the 


•  OCTOBER  TERM,  1862.  87 

Wood  v.  Warner. 

enterprise  to  an  account,  and  strip  them  of  their  interest  in 
the  concern. 

If  this  contract  constitutes  a  partnership  between  the 
parties,  being  indefinite  in  its  duration,  either  party,  upon 
well  settled  principles,  had  a  right  to  terminate  it  at  his 
pleasure.  3  Kent's  Com.  53;  Gow  on  Partn.  269,  275; 
Story  on  P(trtn.}  §  84. 

There  is  no  evidence  in  the  case  of  a  fraudulent  purpose 
on  the  part  of  the 'complainants  in  closing  their  operations. 
The  bill  distinctly  states  that  the  business,  for  some  months 
before  filing  the  bill,  had  ceased  to  be  productive,  and  that 
very  heavy  losses  were  sustained  in  carrying  it  on.  It  as- 
signs, as  a  leading  cause  of  the  unfortunate  character  of  the 
recent  operations,  the  failure  to  find  a  market,  owing  to  the 
national  difficulties,  and  the  impossibility  of  making  salos  at 
the  south,  where  the  principal  market  had  previously  been 
found.  It  is  obvious  that  in  such  an  enterprise  emergencies 
may  arise,  which  will  only  justify,  but  require  the  cessa- 
tion of  the  business.  Such  contingencies  must  have  been 
within  the  contemplation  of  the  parties  in  forming  the  con- 
tract. It  is  not  denied  that  the  complainants  furnished  the 
working  capital  of  $20,000  according  to  their  contract,  and 
entered  in  good  faith  upon  its  performance.  So  far  as  appears 
the  business  was  carried  on  from  3857  until  the  close  of  1859 
successfully  and  to  the  satisfaction  of  all  concerned.  If  the 
business,  from  causes  beyond  the  control  of  the  complainants, 
has  since  proved  disastrous,  I  see  no  reason  why  they  should 
not  be  permitted,  either  as  partners  or  as  agents  of  the  pro- 
prietors, to  close  their  operations,  and  seek  an  account  and 
settlement  in  this  court. 

But  whatever  obligation  might  have  been  imposed  upon 
the  complainants  by  the  contract  of  1857  to  continue  the 
business,  it  would  seem  to  be  discharged  by  the  contract  of 
the  thirteenth  of  January,  1860.  By  that  agreement,  made 
between  the  owners  of  the  island  and  William  A.  Howard, 
the  island,  together  with  all  the  vessels,  boats,  horses,  imple- 
ments, railroad  and  cars,  and  everything  appertaining  and 


88 


CASES  IN  CHANCERY. 


Hodgson  r.  Farrell. 


necessary  for  getting  out  and  delivering  the  guano  on  board 
of  the  vessels,  were  delivered  to  Howard,  who  agreed,  for  a 
stipulated  compensation,  to  get  out  and  ship  the  guano,  as 
instructed  by  the  proprietors  or  their  authorized  agents. 
This  contract  was,  by  its  terms,  to  continue  for  three  years 
from  the  first  of  April,  1860,  with  liberty  to  cither  party, 
upon  a  reasonable  cause  of  dissatisfaction,  to  terminate  it. 
It  was  in  fact  terminated  by  Howard,  in  July,  1860,  before 
it  had  been  in  operation  four  months.  Since  that  time  the 
property  lias  remained  in  the  possession  and  under  the  con- 
trol of  the  complainants. 

I  can  see  no  ground  upon  which  they  can  be  required  to 
carry  on  the  business  at  a  sacrifice  of  their  interests,  or  pre- 
vented from  having  an  account  and  settlement  with  those  in- 
terested in  the  enterprise. 

There  must  be  a  reference  to  a  master  to  take  the  account. 
All  further  equity  is  reserved  until  the  coming  in  of  the  re- 
port. 


JAMES  HODGSON,  ROBERT  M.  PIERCE,  and  BENJAMIN  F. 
HOLBROOK  vs.  JOHN  W.  FARRELL. 


On  a  bill  filed  by  defendants  in  attachment,  and  a  subsequent  judgment 
creditor  of  the  defendants  in  attachment  against  the  purchaser  at  a  sale 
of  the  defendant's  real  estate,  made  by  the  auditors  in  attachment  to  set 
aside  the  sale  on  account  of  an  imperfect  description  of  the  property  in 
the  advertisement  of  the  sale  and  gross  inadequacy  of  price,  it  was  held 
that  the  fact  that  property  worth  $12,000  is  struck  on"  and  sold  at  a  pub- 
lic sale  for  §400,  aflbrds  in  itself  very  strong  ground  for  equitable  relief. 
It  is  such  gross  inadequacy  of  price  as  to  shock  the  conscience,  and  to 
amount  in  itself  to  strong  evidence  of  fraud. 

The  fact  that  the  advertisement  was  so  framed  as  to  mislead,  so  that  no 
one  not  acquainted  with  the  premises  could  have  conjectured,  from  the 
advertisement,  what  the  property  was  that  was  intended  to  be  sold,  in 
connection  with  the  fact  that  there  were  no  bidders  at  the  sale  but  the 
purchaser,  and  that  the  property  was  sold  at  a  very  inadequate  price, 
makes  the  sale  constructively  fraudulent  as  against  the  defendant  in 
execution  or  others  having  liens  upon  the  property,  and  on  that  accounl 


OCTOBER  TERM,  1862.  89 

Hodgson  v.  Farrell. 

constitutes  a  ground  of  equitable  relief,  although  the  advertisement  may 
be  a  technical  compliance  with  the  requirement  of  the  statute  so  far  as 
to  vest  a  valid  title  in  the  purchaser. 

When,  however,  it  appears,  by  the  bill  and  answer  taken  together,  that  on 
account  of  other  encumbrances  on  the  premises  they  really  brought  a 
much  higher  price  than  that  at  which  they  were  struck  off  to  the  pur- 
chaser, and  that  a  resale  cannot  benefit  the  judgment  creditor  at  whose 
instance,  and  mainly  for  whose  benefit  the  injunction  was  issued,  such 
resale  will  not  be  ordered,  and  the  injunction  will  be  dissolved. 

The  interest  of  the  defendants  in  attachment  can  in  no  wise  be  affected  by 
the  price  at  which  the  property  was  sold,  except  as  it  leaves  a  larger 
amount  of  their  debts  unpaid,  and  that  alone  constitutes  no  ground  for 
equitable  relief. 

This  was  a  motion  to  dissolve  an  injunction. 
P.  L.  Voorhces  and  Dayton,  for  the  motion. 
Wilson,  contra. 

THE  CHANCELLOR.  The  bill  was  filed  to  set  aside  a  sale 
of  real  estate,  made  by  auditors,  under  a  judgment  in  at- 
tachment against  Pierce  and  Holbrook,  to  the  complainants. 
Hodgson,  the  other  complainant,  is  a  subsequent  judgment 
creditor  of  Pierce  and  Holbrook.  The  case  made  by  the  bill 
is,  that  the  interest  of  the  defendants  in  attachment  in  the 
real  estate  sold,  which  is  alleged  was  worth  $12,000,  was 
struck  off  to  the  defendant  for  $400,  whereby  a  judgment 
of  Holbrook  for  $5000,  which  was  a  subsequent  lien  on  the 
property,  was  totally  lost,  and  the  debt  of  the  defendants  in 
attachment  remained  unsatisfied ;  that  the  notice  of  the  au- 
ditors'sale  was  imperfect  and  insufficient;  that  the  purcha- 
ser was  the  only  bidder  at  the  sale,  and  that  each  parcel  of 
the  premises,  as  sold,  was  struck  off  at  a  single  bid  of  $100, 
made  by  the  defendant. 

The  first  ground  relied  upon  for  dissolving  the  injunction 
*s,  that  there  is  no  equity  in  the  bill.  The  fact  that  real 
estate  charged  to  be  well  worth  $12,000  is  struck  off  and 
sold  at  a  public  sale  for  $400  affords,  itself,  very  strong 
ground  for  equitable  relief.  It  is  such  gross  inadequacy  of 


90  CASES  IN  CHANCERY. 

Hodgson  v.  Farrell. 

price  as  to  shock  the  conscience,  and  to  amount  in  itself,  to 
strong  evidence  of  fraud.  2  Story's  Eq.  Jar.,  §  246  ;  3  StocJd. 
233. 

But  the  equity  of  the  complainants'  bill  does  not  rest  upon 
the  ground  of  mere  inadequacy  of  price.  The  notice  of  the 
sale  is  imperfect.  The  advertisement  is  headed  "  Auditors 
sale  of  land  and  water  riyhte"  in  large  capitals.  The  pro- 
perty to  l>e  sold  is  described  as  the  right,  title,  and  interest 
of  the  defendants,  Robert  M.  Pierce  and  Benjamin  Holbrook, 
in  and  to  "the  following  described  premises,  situate  in  Mul- 
lica  township,  Atlantic  county,  New  Jersey,  being  a  mill 
stream  and  pond,  commonly  known  as  '  Pleasant  Mills/  to- 
gether with  the  water  rights  to  the  same  belonging.  Also 
two  hundred  acres  of  land  adjoining  the  said  mill  stream  and 
pond."  Besides  the  land  and  water  rights,  the  property 
sold  consisted  of  a  new  and  extensive  paper  mill  and  ma- 
chinery, a  saw  mill,  mansion-house,  sto^e,  and  twenty  dwell- 
ing-houses. These  constituted  its  chief  value.  It  is  obvious 
that  the  advertisement  was  not  only  defective,  but  was  cal- 
culated to  mislead.  No  one  not  acquainted  with  the  prem- 
ises could  have  conjectured,  from  the  advertisement,  what 
the  property  was  that  was  intended  to  be  sold.  No  sane 
man  desirous  of  effecting  an  advantageous  sale  of  the  prem- 
ises would  have  advertised  the  property  in  the  terms  used  in 
the  notice  of  sale.  It  is  no  answer  to  say,  that  the  property 
was  designated  in  the  advertisement  as  "Pleasant  Mills," 
by  which  title  the  property  was  familiarly  known  in  that  re- 
gion of  country — a  purchaser  for  that  description  of  property 
was  not  likely  to  be  found  in  the  immediate  vicinity ;  and 
to  make  that  fact  of  any  importance,  it  should  appear  that 
it  was  known  to  manufacturers  and  capitalists  elsewhere  by 
that  description.  But  a  more  decided  answer  appears  upon 
the  face  of  the  bill.  The  principal  manufactory  at  Pleasant 
Mills,  for  many  years,  was  a  cotton  mill,  which  was  burnt, 
and  the  paper  mill  has  been  recently  built  in  its  place.  To 
advertise  it  therefore  simply  by  its  name  was  calculated  to 
mislead  rather  than  to  attract  purchasers.  It  was  certainly 


OCTOBER  TERM,  1862.  91 

Hodgson  v.  Farrell. 

giving  no  definite  information  to  the  public  of  what  was  in* 
tended  to  be  sold. 

In  Allen  v.  Cole,  1  Stocld.  286,  which  was  a  bill  filed  to 
set  aside  a  sheriff's  sale,  and  for  a  resale  on  the  ground, 
among  others,  of  illegality  in  advertising  the  property,  the 
Chancellor  said,  "the  advertisement  of  the  sheriff  was  in 
strict  compliance  with  the  law.  It  sufficiently  identified  the 
property.  The  sheriff  was  not  bound  to  describe  the  num- 
ber of  buildings  or  their  character."  Unfortunately  the  re- 
port does  not  disclose  what  the  advertisement  was  nor  of 
what  the  property  consisted.  On  reference  to  the  original 
bill  on  file,  it  appears  that  the  property  consisted  of  houses 
and  lots  in  the  city  of  Camden.  In  regard  to  some  of  the 
lots,  the  advertisement  includes  a  description  of  the  buildings 
upon  it.  But  one  of*  the  lots,  after  describing  it  generally, 
is  advertised  to  be  sold  with  the  buildings  upon  it,  with  cer- 
tain specificed  exceptions.  Now  the  opinion  must  be  taken 
as  applicable  to  that  description,  and  so  far  its  soundness  is 
not  questioned.  The  property,  so  far  as  appears  by  the  case, 
was  sufficiently  identified.  The  question  is  not  whether  the 
advertisement  is  a  technical  compliance  with  the  require- 
ment of  the  statute,  or  whether  the  defect  is  such  as  to 
invalidate  the  title  in  the  hands  of  the  purchaser,  but 
whether  the  character  of  the  description,  in  connection  with 
the  fact  that  there  were  no  bidders  at  the  sale,  and  that  the 
property  sold  at  a  very  inadequate  price,  does  not  make  the 
sale  constructively  fraudulent,  as  against  the  defendant  in 
execution  or  others  having  liens  upon  the  property,  and 
does  not,  on  that  account,  constitute  a  ground  of  equitable 
relief.  I  have  no  hesitation  in  sayirig  that  it  does,  even 
though  the  advertisement  be  a  compliance  with  the  require- 
ment of  the  statute  so  far  as  to  vest  a  valid  title  in  the  pur- 
chaser. Tims  an  advertisement  of  a  town  lot  by  its  street 
and  number  would  be  sufficient  to  identify  the  lot.  But  if, 
under  such  advertisement,  the  sheriff  should  sell  a  costly 
dwelling  at  a  price  not  exceeding  the  value  of  the  lot,  in  the 
absence  of  all  competition,  it  would  afford  ground  for  relief. 


92  CASES  IN  CHANCERY. 

Hodgson  v.  Farrell. 

So  if,  under  an  advertisement  of  a  water  power  and  two 
hundred  acres  of  land,  the  sheriff,  in  the  absence  of  all  com- 
petition, sell  a  valuable  manufactory  and  machinery  at  a 
merely  nominal  value,  it  surely  affords  ground  fur  relief  in 
equity.  I  entertain  no  doubt  that  the  case  made  by  the  bill 
called  for  the  interference  of  the  court.  The  injunction  was 
properly  issued,  and  cannot  be  dissolved  for  want  of  equity 
in  the  bill. 

But  it  is  further  urged  that  the  equity  of  the  bill  is  fully 
denied  by  the  answer.  The  equity  of  the  complainants'  case 
rests  upon  the  charge  of  a  defective  or  erroneous  description 
of  the  premises  in  the  advertisement,  the  consequent  absence 
of  all  competition  at  the  sale,  and  a  sacrifice  of  the  property 
to  the  prejudice  of  the  complainants'  rights.  The  bill  charges 
that  the  premises  sold  were  subject  only  to  an  encumbrance 
of  $11,000,  and  though  it  does  not  expressly  aver,  yet  its 
phraseology  is  calculated  to  create  the  impression  that  the 
judgment  of  Hodgson  for  §5000  was  the  next  encumbrance 
in  order  and  priority  to  the  judgment  in  attachment ;  whereas 
it  appears,  by  the  answer,  that  there  were  other  encumbrances 
upon  the  premises,  and  that  the  purchaser  held  a  mortgage 
upon  the  property  prior  to  Hodgson's  judgment,  upon  which 
there  was  due,  at  the  time  of  the  sale,  over  §10,000.  Had 
that  fact  appeared  by  the  bill,  the  injunction  would  not  have 
been  granted.  It  satisfactorily  accounts  for  the  price  at 
which  the  property  was  sold,  and  shows  that  instead  of  sell- 
ing for  $400,  the  interest  of  the  defendants  virtually  brought 
more  than  $5400.  It  explains  the  absence  of  all  competition 
at  the  sale ;  for  it  is  apparent  that  no  one,  however  desirous 
of  purchasing,  could  have  bought  the  property  without  bid- 
ding over  the  amount  of  Farrell's  encumbrance.  Nothing  is 
more  usual  than  the  striking  off  of  real  estate  at  a  sheriff's 
Bale  to  a  subsequent  encumbrancer  at  a  price  barely  snffi- 
rient  to  satisfy  the  amount  due  upon  the  execution  under 
which  the  side  is  made.  The  answer  moreover  shows  that 
the  offer  of  the  complainants,  if  the  property  should  be  again 
offered  for  sale,  to  bid  an  amount  beyond  the  claim  of  the 


OCTOBER  TERM,  1862.  93 

Downing  r.  Risley. 

attaching  creditor  is  merely  illusory ;  for  Farrell,  the  mort- 
gagee, must  of  necessity  for  his  own  protection  bid  fur  beyond 
the  amount  of  the  judgment  in  attachment  under  which  the 
premises  were  sold.  The  averments  of  the  bill  and  answer 
show  satisfactorily  that  a  resale  cannot  benefit  Hodgson,  the 
judgment  creditor,  at  whose  instance  and  mainly  for  whose 
benefit  the  injunction  issued. 

The  complainants  allege,  in  their  bill,  that  they  had  not 
notice  of  the  time  and  place  of  sale,  but  they  do  not  allege 
that  neither  of  them  had  notice.  The  averment  may  be  true, 
and  yet  Pierce  and  Holbrook,  the  owners  of  the  property,  may 
have  had  full  notice.  It  is  fair  to  infer,  from  the  phraseology 
of  the  bill  and  from  the  averments  of  the  answer,  that  they 
had  actual  notice  of  the  time  and  place  of  sale;  and  if  they 
had  not,  it  was  the  result  of  their  own  negligence  or  inatten- 
tion. Their  interest,  moreover,  can  in  no  wise  be  affected  by 
the  price  at  which  the  premises  were  sold,  except  as  it  leaves 
a  larger  amount  of  their  debts  unpaid.  But  this  alone  con- 
stitutes no  ground  for  equitable  relief. 

The  injunction  must  be  dissolved  with  costs. 

CITED  in  Bellows  v.  Wilson,  2  Stew,  127. 


HANNAH  B.  DOWNING  and  SARAH  B.  DOWNING:  vs.  DAVID 
SISLEY  and  SARAH  P.  MORSE. 

On  a  bill  filed  by  the  heirs-at-law  of  a  deceased  vendee  by  parol  contract 
against  a  purchaser  claiming  by  a  subsequent  deed  from  the  vendor, 
charging  such  purchaser  with  notice  of  the  parol  contract  of  sale,  and 
praying  a  decree  for  specific  performance  against  such  purchaser,  it  was 
fceWthat  the  administrator  of  the  vendee  was  a  necessary  party  to  such 
a  suit  where  the  personal  estate  was  small,  the  estate  still  unsettled,  and 
it  does  not  appear  that  the  debts  of  the  deceased  vendee  have  been  paid. 

The  administrator  is  not  only  liable  for  the  purchase  money,  and  interested 
in  disputing  the  contract,  but  he  has  an  equitable  interest  on  behalf  of 
creditors  in  the  real  estate  of  his  intestate  paramount  to  that  of  the  heirs. 
All  persons  interested  in  the  contract  should  be  made  parties  to  the  pro- 
ceeding. 

The  fact  that  the  heirs  are  also  bona  fide  creditors  of  the  vendee,  however. 

VOL.  ii.  p 


94  CASES  IN  CHANCERY. 

Downing  ».  Risley. 

it  may  strengthen  their  claim  to  equitable  relief,  cannot  aid  the  defect 
in  the  bill  for  want  of  parties. 

The  defendant  did  not  take  his  title  directly  from  the  vendor,  bnt  from  one 
8.  P.  M.,  to  whom  the  vendor  made  title,  and  who  was  originally  a  party 
to  the  bill,  but  died  pending  the  suit.  It  appeared,  however,  that  S.  P. 
M.  was  a  mere  trustee  for  the  defendant.  Held  that  the  conveyance  by 
8.  P.  M.  to  the  defendant  was  a  mere  execution  of  the  trust,  and  that  it 
was  unnecessary  to  make  the  representatives  of  S.  P.  M.  parties  to  the 
suit 

There  is  no  difficulty  in  enforcing  the  specific  performance  of  the  contract 
against  the  alienee  of  the  vendor.  Where  the  alienee  has  notice  of  the 
original  contract  at  the  time  of  the  alienation,  he  is  liable  to  its  per- 
formance at  the  suit  of  the  vendee.  If  he  is  a  purchaser  with  notice, 
he  is  liable  to  the  same  equity,  stands  in  his  place,  and  is  bound  to  do 
that  which  the  person  he  represents  would  be  bound  to  do  by  the  decree. 


Browning,  for  complainant  ex  parte. 

THE  CHANCELLOR.  The  bill  charges  that,  in  the  year  1 854, 
Benjamin  C.  Downing,  by  a  parol  agreement,  purchased 
of  John  Leeds,  for  the  consideration  of  $200,  a  lot  of  land 
in  Atlantic  City ;  that  with  the  consent  of  the  vendor,  and 
in  part  performance  of  the  contract,  the  purchaser  entered 
into  possession,  and  erected  upon  the  premises,  at  a  cost  of 
about  $3000,  a  boarding-house,  and  continued  in  possession 
thereof  till  his  death ;  that  no  deed  was  made  to  the  pur- 
chaser, but  that  in  1859,  David  Risley,  without  the  know- 
ledge of  the  purchaser,  fraudulently  procured  a  deed  for  the 
premises  to  be  made  by  Leeds,  the  vendor,  to  Sarah  P.  Morse, 
and  by  Sarah  P.  Morse  to  himself.  Downing,  at  the  time  of 
these  conveyances,  was  in  possession  of  the  premises,  and 
lx)th  Risley  and  Morse  well  knowing  the  agreement  for  the 
purchase  by  Downing  and  his  equitable  title  to  the  premises. 
The  bill  prays  that  Risley  may  be  decreed  to  convey  the 
premises  to  the  complainants,  upon  the  payment  to  him  of 
the  purchase  money  with  interest.  Downing,  the  purchaser, 
died  intestate  and  in  possession  of  the  premises. 

Without  calling  in  question  the  title  of  the  complainants 
to  equitable  relief,  I  think  the  bill  is  defective  for  want  of 
parties.  The  bill  is  filed  by  the  heirs  of  the  vendee.  It  ap- 


OCTOBER  TERM,  1862. 


Downing  v.  Kisley. 


pears,  by  the  bill,  that  administration  has  been  granted  upon 
his  estate  in  the  county  of  Atlantic,  and  that  his  personal 
estate  is  very  small.  It  does  not  appear  that  the  estate  hae 
been  settled,  or  that  his  debts  have  been  paid.  Under  such 
circumstances,  it  is  necessary  that  the  administrator  should 
be  a  party  to  the  bill.  He  has  an  interest  in  disputing  the' 
contract,  and  is  the  party  liable  to  pay  the  purchase  money. 
Bachmaster  v.  Harrop,  7  Ves.  341  ;  Fry  on  Spec.  Pcrf.}  §  118.? 
If  the  bill  had  been  filed  by  the  vendor  for  the  specific 
performance  of  the  contract,  there  can  be  no  doubt  that  the 
personal  representative  must  have  been  made  a  party.  He 
alone,  and  not  the  heirs,  would  have  been  liable  for  the  pur- 
chase money. 

The  difficulty  is  not  overcome  by  the  offer,  on  the  part  of 
the  complainants,  to  pay  the  purchase  money.  The  admin- 
istrator is  not  only  liable  for  the  purchase  money,  and  in- 
terested in  disputing,  the  contract,  but  he  has  himself,  by-, 
our  law,  an  equitable  interest  in  behalf  of  the  creditors  para-. 
mount  to  that  of  the  heirs.  Upon  a  deficiency  of  the  -per- 
sonalty, the  real  estate  is  assets  for  the  payment  of  debts,' 
It  devolves  upon  the  heirs  charged  with  that  encumbrance. 
It  may  be  sold  at  ihe  instance  of  the  administrator.  All  per- 
sons interested  in  the  contract  should  be  made  parties  to  the 
proceeding. 

This  principle  was  recognized  and  applied  in  Anshutzfs 
appeal,  34  Penn.  St.  R.  375.  In  that  case  application  was 
made,  by  the  administrator  of  the  vendor,  to  enforce  the, 
specific  performance  of  the  contract  against  an  heir  of  the, 
vendee,  who  had  purchased  in  the  interest  of  the  other  heirs. 
It  was  held  that  the  administrator  and  the  heirs  of  the, 
vendor,  and  all  persons  deriving  title  from  them  or  interested. 
in  the  contract,  should  be  made  parties  to  the  proceeding, 
and  that  notice  should  also  be  given  to  the  heirs  of  the 
vendor. 

There  is  an  allegation  in  the  bill  that  the  complainant^ 
are  creditors,  as  well  as  heirs  of  the  purchaser,  having  ad-. 
vanced  a  large  sum  of  money  to  aid  in  the  erection  of  the 


96  CASES  IN  CHANCERY. 

Downing  r.  Risley. 

house  built  upon  the  premises.  But  it  is  not  alleged  that 
they  arc  judgment  creditors,  or  that  they  have  any  lien  upon 
the  kind,  legal  or  equitable,  which  can  give  any  preference 
over  other  creditors  of  the  intestate. 

The  bill  is  not  in  the  nature  of  a  creditor's  bill  for  the 
benefit  of  all  the  creditors,  or  of  such  as  will  unite  in  the 
suit,  but  is  filed  for  the  benefit  of  the  complainants  alone. 
It  is  not  perceived  that  the  fact  of  their  being  bona  fide 
creditors  of  the  purchaser,  however  it  may  strengthen  their 
equitable  claim  to  relief,  can  aid  the  defect  in  the  bill  for 
want  of  parties. 

Sarah  P.  Morse  has  died  since  the  institution  of  the  suit. 
I  do  not  perceive  that  she  had,  at  the  time  of  her  death,  any 
transmissible  interest  in  the  premises,  or  that,  under  the 
frame  of  the  bill,  it  is  necessary  to  make  her  representatives 
parties  to  the  suit.  If  it  be  true,  as  charged  in  the  bill, 
that  the  consideration  of  the  conveyance  from  Leeds  to 
Sarah  P.  Morse  was  advanced  by  Risley,  there  was  an  im- 
plied trust  in  his  favor.  The  land  was  held  by  the  grantee 
in  trust  for  Ridley.  The  conveyance  to  Risley,  with  or  with- 
out consideration,  was  a  mere  execution  of  the  trust. 

The  exhibits  have  not  been  furnished  to  me,  but  it  is  as- 
sumed that  the  deed  from  Sarah  P.  Morse  to  Risley  is  with- 
out covenants  of  warranty. 

There  is  no  difficulty  in  enforcing  the  sj>ecifie  performance 
of  the  contract  against  the  alienee  of  the  vendor.  Where 
the  alienee  has  notice  of  the  original  contract  at  the  time  of 
the  alienation,  he  is  liable  to  its  performance  at  the  suit  of 
the  purchaser.  If  he  is  a  purchaser  with  notice,  he  is  liable 
to  the  same  equity,  stands  in  his  place,  and  is  bound  to  do 
that  which  the  person  he  represents  would  be  bound  to  do  by 
the  decree.  Taylor  v.  Stibbert,  2  Vcsey,  jun.  43  J ;  Fry  on 
Spec.Perf.,  §  135,  137. 

I  purposely  avoid  the  intimation  of  any  opinion  upoh  the 
question,  whether,  as  general  creditors,  the  complainants 
might  enforce  the  performance  of  the  contract ;  and  if  so, 


OCTOBER  TERM,  1862.  97 


Santa  v.  Moore. 


whether  that  may  be  done  for  their  own  benefit,  in  exclusion 
of  other  creditors.  It  is  enough  to  say  that  the  bill  is  not 
framed  in  that  aspect. 

CITED  in  Hauyhwoul  &  Pomeroy  v.  Murphy,  7  C.  E.  Or.  547. 


WILLIAM   S.  BANTA,  administrator  of  Jane  Ann  Moore, 
deceased,  vs.  JOHN  L.  MOORS. 

J.  A.  M.,  domiciled  in  New  Jersey,  died  intestate.  Letters  of  administra- 
tion on  her  estate  were  granted  to  the  complainant,  in  the  place  of  the 
domicil  of  the  intestate.  The  defendant,  a  brother  and  one  of  the  next 
of  kin  of  the  intestate,  obtained  possession  of  some  of  the  personal  pro- 
perty of  the  deceased,  consisting  of  bonds  and  stock  of  the  Buffalo, 
New  York,  and  Erie  Railroad,  a  bond  of  the  New  York  and  New  Haven 
Railroad  Company,  and  a  note  or  notes  of  a  brother  of  the  intestate, 
who  resided  in  New  Jersey,  and  procured  administration  of  the  personal 
estate  of  the  intestate  to  be  granted  to  him  by  the  surrogate  of  the  city 
and  county  of  New  York.  Complainant  filed  his  bill  in  this  court  against 
the  defendant,  alleging  the  above  facts,  and  also  that  defendant  had  re- 
ceived other  considerable  sums  of  money  in  New  York  as  administrator ; 
that  there  were  no  debts,  and  praying  a  discovery  and  account  of  tho 
amount  in  the  defendant's  hands,  and  a  decree  that  he  pay  over  such 
amount  to  the  complainant.  On  a  demurrer  to  this  bill,  it  was  held — 

That,  as  the  intestate  left  assets  both  in  New  York  and  in  this  state,  ad- 
ministration was  rightfully  granted  in  both  states,  although  the  right  of 
succession  to  the  personal  estate  is  to  be  regulated  by  the  law  of  the 
domicil. 

Administration  of  the  estate  must  be  in  the  jurisdiction  in  which  posses- 
sion of  it  was  taken  and  held  under  lawful  authority,  and  when  there 
are  two  administrators  in  different  countries,  each  portion  of  it  must  be 
administered  in  the  country  where  possession  of  it  was  so  taken. 

The  person  to  whom  administration  is  granted  is  bound  to  administer  the 
estate  and  pay  the  debts  of  the  deceased.  His  duties  remain  the  same 
though  the  intestate  may  have  been  domiciled  elsewhere.  The  right  of 
administration  is  irrespective  of  the  domicil  of  the  intestate. 

The  validity  of  the  letters  of  administration  in  New  York  not  being  called 
in  question,  the  claim  of  the  complainant,  that  the  defendant  having,  as 
such  foreign  administrator,  collected  funds  of  the  intestate,  is  bound  to 
account  for  them  to  the  administrator  in  this  state,  to  be  administered 
here,  is  without  foundation  in  principle. 

The  bill  alleges  that,  as  to  one  or  more  of  the  securities  taken  and  held  by 
defendant,  the  debtor  resided  and  still  resides  in  this  state.  The  foreign 


CASES  IN  CHANCERY. 


Banta  v.  Moore. 


administration  gave  no  title  to  these  securities  as  against  the  adminis- 
trator in  tliis  state.    The  bill  prays  a  discovery  and  account  as  to  these 
securities,  and  for  that  purpose  it  can  he  maintained. 
The  demurrer  is  too  general  ;  it  is  applied  to  the  whole  bill,  but  is  good  aa 
to  part  only,  and  must  be  overruled. 


Zabriskie,  for  complainant. 
Gilchrist,  for  defendant. 

THE  CHANCELLOR.  The  bill  charges,  that  on  or  about  tho 
tenth  of  June,  1858,  Jane  Ann  Moore,  the  complainant's  in- 
testate, died  at  Hackensack  in  the  county  of  Bergen,  where 
she  resided  at  the  time  of  her  death,  and  where  she  had  re- 
sided for  nearly  the  whole  of  her  life.  She  died  intestate, 
leaving  her  mother,  several  brothers  and  sisters,  and  the 
.children  of  a  deceased  brother,  her  next  of  kin.  At  the  time 
of  her  death  she  was  possessed  of  and  entitled  to  personal 
property  of  the  value  of  several  thousand  dollars,  consisting, 
in  part,  of  railroad  stock  and  bonds,  and  of  notes  particu- 
larly specified  in  the  bill;  and  the  bonds,  scrip,  notes,  and 
evidences  of  her  title  to  said  property  were,  at  the  time  of 
lier  death,  in  her  possession  at  her  residence  in  Hackensack. 
Administration  upon  her  estate  was  granted  to  the  com- 
plainant, by  the  surrogate  of  the  county  of  Bergen  on  tho 
twenty-fifth  of  January,  1860.  Shortly  after  the  death  of 
the  intestate,  John  L.  Moore,  one  of  her  brothers  and  next 
of  kin,  took  from  her  effects  and  papers,  in  the  house  where 
she  resided  at  her  death,  three  bonds  of  the  Buffalo,  New 
York,  and  Erie  Railroad  for  $1000  each;  two  certificates  of 
stock  of  said  company;  a  bond  of  the  New  York  and  New 
Haven  Railroad  Company  for  $1000;  a  note  or  notes  of  her 
brother,  Charles  Moore,  who  also  resided  at  Hackensack,  for 
$575  or  thereabouts,  and  procured  administration  of  the  per- 
sonal estate  of  the  said  intestate  to  be  granted  to  him  by  the 
surrogate  of  the  city  and  county  of  New  York ;  that  the  said 
John  L.  Moore,  after  said  grant  of  administration  to  him, 


OCTOBER  TERM,  1862.  99 

Banta  v.  Moore. 

and  by  virtue  thereof,  disposed  of  said  four  railroad  bonds, 
and  collected  a  large  amount  of  interest  due  thereon,  sold 
the  railroad  stock,  and  also  collected  and  received  from  the 
city  chamberlain  of  the  city  of  New  York  $803.35,  deposited 
with  him,  due  and  belonging  to  said  intestate,  or  which  be- 
came due  to  her  estate  by  the  death  of  her  mother,  on  the 
third  of  January,  I860,  and  also  collected  and  received  $1250 
for  the  interest  of  the  intestate  in  the  ship  Jamestown,  and 
he  still  retains  the  said  note  or  notes  of  Charles  Moore. 

The  bill  insists  that,  by  reason  of  the  residence  of  the  in- 
testate in  the  county  of  Bergen  at  the  time  of  her  death,  the 
right  and  jurisdiction  of  granting  administration  of  her  per- 
sonal eifects  was  in  the  surrogate  of  said  county  and  in  the 
Ordinary  of  this  state,  and  that  the  right  and  jurisdiction  of 
settling  the  accounts  of  said  estate,  and  of  decreeing  distri- 
bution thereof,  was  exclusively  in  the  Orphans  Court  of  said 
county  and  in  the  Prerogative  Court  of  this  state,  and  that 
such  distribution  could  only  be  made  according  to  the  laws 
of  the  state  of  New  Jersej-,  the  domicil  of  the  said  decedent ; 
that  auxiliary  letters  of  administration  might  be  granted  in 
other  states  and  jurisdictions  to  collect  and  get  possession  of 
the  property,  choscs  in  action,  or  other  assets  situate  in  such 
jurisdiction,  but  that  the  same  must  be  paid  over  to  the  ad- 
ministrator appointed  by  the  jurisdiction  in  the  state  of  the 
intestate's  domicil. 

The  bill  further  charges,  that  the  said  John  L.  Moore  has 
not  paid  out  of  the  moneys  so  received  by  him  any  debts 
owing  by  the  said  decedent,  she  not  owing  any  at  her  death, 
and  has  only  accounted  to  the  next  of  kin  of  the  decedent 
for  a  sum  not  exceeding  $1200;  that  he  neglects  to  settle  up 
said  estate,  and  refuses  to  pay  over  the  personal  estate  in  his 
hands  to  the  complainant,  who,  as  administrator  in  the  place 
of  domicil,  is  entitled  to  receive  the  same,  but  has  converted 
the  same  to  his  own  use ;  and  that  he  retains  the  notes  of 
the  said  Charles  Moore,  and  that,  by  reason  thereof,  the 
amount  due  thereon  will  be  lost. 

The  bill  prays  a  discovery  of  the  securities  and  property 


100  CASES  IN  CHANCERY. 

Ban  la  r.  Moore. 

of  the  intestate  taken  by  the  defendant,  and  of  the  amount 
collected  by  him,  and  an  account  of  the  amounts  received  by 
the  defendant,  and  for  which  he  is  accountable,  and  that  ho 
may  be  decreed  to  pay  the  same  to  the  complainant,  as  admin- 
istrator of  said  intestate,  to  be  distributed  among  her  next  of 
kin  according  to  la\v. 

To  this  bill  the  defendant  demurs. 

Upon  the  facts  disclosed  by  the  bill,  it  is  clear  that  the 
complainant's  intestate  died  leaving  assets  both  in  New  York 
and  in  this  state.  Administration  was  rightfully  granted  in 
both  states.  The  doniicil  of  the  intestale  was  in  this  state. 
The  right  of  succession  to  the  personal  estate  is  to  be  regu- 
lated by  tlie  law  of  the  doniicil.  But  by  whom  are  the  assets 
to  be  administered,  by  the  administrator  in  this  state  or  by  the 
administrator  in  New  York? 

The  principle  is  well  settled,  that  the  administration  of  the 
estate  must  be  in  the  jurisdiction  in  which  possession  was 
taken  and  held  of  it  under  lawful  authority  ;  and  where  there 
are  two  administrators  in  different  countries,  each  portion  of 
it  must  be  administered  in  the  country  where  possession  of  it 
is  taken  under  lawful  authority.  1  Williams  on  Ex'rs  356 ; 
2  Ibid.  1414. 

The  person  to  whom  administration  is  granted  is  bound  to 
administer  the  estate  and  pay  the  debts  of  the  deceased.  Hig 
duties  remain  the  same  though  the  intestate  may  have  been 
domiciled  elsewhere.  The  right  of  administration  is  irrespec- 
tive of  the  domicil  of  the  intestate. 

Thus,  where  the  domicil  was  in  India,  the  administrator, 
under  letters  granted  in  India,  was  held  entitled  to  hold  all 
the  property  in  India  at  the  intestate's  death,  though  after- 
wards transmitted  to  England,  against  the  administrator  ap- 
pointed in  England,  though  needed  to  pay  debts  there.  Cur- 
rie  v.  Uuchan,  1  Dowl.  &  Ry.  35. 

On  the  other  hand,  where  the  testator  was  domiciled  in 
Scotland,  and  administration  was  granted  upon  the  personal 
estate  in  England,  it  was  held  that  the  trustees  under  the 
will  in  Scotland  could  not  call  the  personal  estate  out  of  the 


OCTOBER  TE11M,  1862.  101 

Banta  v.  Moore. 

hands  of  the  administrator  in  England,  but  that  it  must  be 
administered  in  England  by  virtue  of  the  letters  of  admin- 
istraiion.  Preston  v.  Lord  Melville.  8  Clark  &  Fin.  1. 

The  subject  has  been  elaborately  discussed,  and  the  prin- 
ciple fully  established  by  the  highest  judicial  authority  in 
this  country.  Harvey  v.  Richards,  1  Mason  381 ;  Vaughan 
v.  Northup,  15  Peters  1  :  Story's  Con/,  of  Laws,  §  513,  513 
a;  2  Kent's  Com.  431-435. 

Where  administration  has  been  granted  in  the  place  of 
the  testator's  domicil,  and  auxiliary  administration  for  the 
purpose  of  collecting  debts  has  been  granted  in  a  foreign 
jurisdiction,  where  the  personal  estate,  or  any  part  of  it,  may 
be  situated,  or  the  debtor  resides,  all  that  can  be  required,  if 
the  fund  in  the  hands  of  the  foreign  administrator  is  needed 
for  the  purposes  of  due  administration  in  the  place  of  the 
domicil,  is  its  transmission  or  distribution  after  all  the  claims 
against  the  foreign  administration  have  been  duly  ascertained 
and  settled.  Story  on  Conf.  of  Laws,  §  518;  2  Williams  on 
Exrs  1415. 

The  principle,  that  the  personal  estate  of  the  intestate, 
wherever  it  may  be,  constitutes  assets,  and  that  assets  in  any 
part  of  the  world  constitute  assets  in  every  part  of  the 
world,  is  not  called  in  question.  The  only  question  is,  by 
whom  the  assets  are  to  be  administered.  Nor  is  it  designed 
to  call  in  question  the  right  of  the  administrator  in  the  place 
of  the  domicil,  where  foreign  administration  has  not  been 
granted  to  sell  and  transfer  the  securities  that  may  come 
into  his  hands,  and  to  collect  debts  due  the  intestate,  wher- 
ever the  debtors  may  reside.  For  the  purpose  of  this  in- 
quiry, it  will  be  assumed  that  all  the  railroad  bonds  and 
negotiable  securities  of  the  intestate  which  came  to  the 
hands  of  the  administrator,  in  this  state  might  have  been 
lawfully  transferred,  and  all  debts  due  collected  wherever 
the  debtor  resided,  and  the  proceeds  administered  as  assets 
here.  But  it  is  admitted  that  none  of  the  securities  ever 
came  to  the  hands  of  the  administrator  in  this  state  to  be  as- 
signed or  sold  by  him,  and  it  is  also  certain  that  the  admin- 


1C2  CASES  IN  CHANCERY. 

Jiunta  v.  Moore. 

istrutor  could  not,  l>y  virtue  of  the  letters  of  administration 
granted  in  this  state,  liavc  enforced  the  collection  of  debts 
due  from  debtors  residing  in  New  York.  That  could  only 
have  been  done  by  virtue  of  letters  of  administration  granted 
there.  The  bill  admits  that  the  securities  were  transferred, 
and  the  debts  due  in  New  York  were  collected  by  virtue  of 
the  letters  of  administration  granted  in  that  state.  1  he  va- 
lidity of  those  letters,  and  the  right  of  the  administrator  to 
collect  the  funds  within  that  jurisdiction,  is  not  called  in 
question  by  the  bill ;  but  it  is  claimed  that  the  administrator, 
having  collected  the  funds,  is  bound  to  account  for  them  to 
the  administrator  in  this  state,  to  be  administered  here. 
The  claim,  as  has  been  said,  is  without  foundation  in  prin- 
ciple. Neither  administrator  has  a  claim  against  the  funds 
in  the  hands  of  the  other.  Each  administrator  is  to  be 
called  to  account  for  the  funds  in  his  hands  in  the  jurisdic- 
tion where  he  was  appointed.  It  was  suggested,  upon  the 
argument,  that  the  time  limited  by  law  for  settlement  by 
the  administrator  in  New  York  had  elapsed,  and  the  pre- 
sumption must  l>e  that  the  estate  there  has  been  duly  admin- 
istered and  settled.  There  is  no  such  averment  in  the  bill. 
On  the  contrary,  it  is  expressly  alleged  that  the  adminis- 
trator in  New  York  has  neglected  to  make  settlement.  The 
proper  mode  of  relief  would  seem  to  be  to  require  him  to 
make  settlement  in  that  state.  It  is  clear  that  the  adminis- 
tration cannot  be  withdrawn  from  his  hands,  nor  the  settle- 
ment of  his  accounts  transferred  to  this  court  from  the 
appropriate  tribunal  in  the  state  where  the  administration 
was  granted. 

It  is  charged,  in  the  bill,  that  the  securities  in  controversy, 
shortly  after  the  death  of  the  intestate,  were  taken  by  the 
defendant,  who  was  one  of  her  brothers  and  next  of  kin, 
from  her  effects  and  papers  in  the  house  where  she  resided 
at  her  death.  It  is  not  perceived  that  this  circumstance  can 
materially  affect  the  merits  of  the  controversy.  It  does  not 
appear  that  they  were  wrongfully  taken.  As  a  brother  and 
one  of  the  next  of  kin  entitled  to  administer,  the  defendant 


OCTOBER  TERM,  18G2.  103 


Banta  v.  Vreeland. 


might  lawfully  have  taken  them.  It  is  not  even  alleged  that 
they  were  taken  without  the  consent  or  against  the  will  of 
any  of  the  next  of  kin.  So  far  as  appears  by  any  averment 
in  the  bill,  they  may  have  been  taken  by  the  consent  of  all 
parlies  interested,  for  the  purpose  of  being  administered 
upon.  But  if  the  fact  were  otherwise,  and  they  were  re- 
moved without  consent  by  one  of  the  next  of  kin  for  the 
purpose  of  administration,  and  were  rightfully  used  and  ap- 
propriated in  the  course  of  administration,  the  circumstances 
under  which  they  were  obtained  constitute  no  ground  of 
equitable  relief. 

In  regard  to  one  or  more  of  the  securities  alleged  to  have 
been  taken  and  held  by  the  defendant,  it  is  charged  that  the 
debtor  resided,  and  still  resides  in  this  state.  To  these  se- 
curities it  is  clear  that  the  foreign  administration  gave  the 
defendant  no  title.  They  constituted  no  assets  to  be  admin- 
istered by  him.  He  has  no  title,  legal  or  equitable,  to  them 
as  against  the  administrator  in  this  state.  As  to  these,  the 
bill  prays  a  discovery  and  an  account,  and  the  complainant 
is  entitled  to  relief.  The  court  will  not  turn  the  party  round 
to  an  action  at  law,  even  if  that  be  maintainable.  The 
remedy  here  is  more  complete  and  effective.  Story's  Eq.  PL, 
§  64  k,  67. 

The  demurrer  is  too  general.  It  is  applied  to  the  whole 
bill,  but  is  good  as  to  part  only,  and  must  be  overruled. 
Story  s  Eq.  PL  443 ;  Cooper's  Eq.  PL  12. 

CITED  in  Normand's  Adm'r  v.  Grognard,  2  C.  E.  Gr.  427 ;  Burling  v. 
Hcunmar,  5  C.  E.  Gr.  223  ;  Brownlee  v.  Lockwood,  5  C.  E.  Gr.  257. 


SAMUEL  T.  BANTA  vs.  THOMAS  B.  VEEELAXD  and  AXN 
VREELAND. 

On  a  bill  filed  for  the  foreclosure  of  a  mortgage,  in  which  it  is  alleged  that 
the  mortgage  had  been  cancelled,  and  with  the  bond  had  been  surren- 
dered to  the  defendant  by  mistake,  under  a  mistaken  apprehension  that 
the  mortgage  debt  had  been  satisfied,  when  in  truth  it  had  not — 

Held  that  the  voluntary  cancellation  of  the  securities  by  the  holder  is  a 
very  strong  circumstance,  which  can  only  be  overcome  by  clear  evi- 


104  CASES  IN  CHANCERY. 

Banta  r.  Vreeland. 

(U-iice  ;  but  that  llio  evidence  in  tliis  case  shows  satisfactorily  that  th« 
niortg:ig<'  lias  in-ver  been  paid. 

Equity  win  relieve  wliere  an  instrument  has  been  delivered  up  or  can- 
celled through  fraud  or  mistake. 

The  present  c:ise  docs  not  fall  within  the  principle,  that  to  entitle  the  party 
to  relief  on  the  ground  of  mistake,  it  must  be  of  such  a  fact  as  he  could 
not  by  reasonable  diligence  have  obtained  knowledge  of. 


ZaJbrislde,  for  complainant. 
Gilchriist,  for  defendants. 

THE  CHANX-ELLOH.  The  bill  is  filed  to  foreclose  two  mort- 
gages upon  tlie  same  premises.  The  first  was  given  by 
Jacob  C.  Vreeland  to  Conrad  Vreeland,  dated  the  thirteenth 
of  March,  1844,  for  $300,  and  assigned  to  the  complainant 
by  the  executor  of  the  mortgagee.  The  second  was  given  by 
Jacob  C.  Vreeland  to  the  complainant,  dated  December  tenth, 
1851,  for  $628.11.  In  regard  to  the  second  mortgage,  there 
is  no  dispute.  The  first  mortgage  was  cancelled  of  record, 
and  the  bond  and  mortgage  surrendered  by  the  complainant 
to  the  defendant  on  the  seventeenth  of  October,  I860.  The 
bill,  which  was  filed  a  few  days  after  the  cancellation,  alleges 
that  this  cancellation  of  the  mortgage  was  made  by  the  com- 
plainant under  a  mistaken  apprehension  that  the  mortgage 
had  been  satisfied,  when  in  truth  it  had  not.  The  truth  of 
tliis  averment  constitutes  the  material  inquiry  in  the  cause. 

Was  that  mortgage  debt  ever  paid  ? 

The  mortgaged  premises,  on  the  seventeenth  of  November, 
1856,  were  conveyed  by  Jacob  C.  Vreeland,  the  mortgagor, 
to  his  brother,  Thomas  B.  Vreeland,  the  defendant.  The 
mortgage  was  surrendered  and  cancelled  of  record  on  the 
seventeenth  of  October,  1860.  The  evidence  shows  clearly 
that  nothing  was  paid  upon  the  mortgage,  nor  was  it  satisfied 
in  any  way  by  any  act  done,  or  arrangement  made  at  the 
time  of  the  cancellation.  It  was  cancelled  under  the  belief 
that  it  had  been  paid  long  before.  If  so,  when,  how,  and  by 
whom  was  it  paid?  It  would  naturally  have  been  paid 
either  by  the  mortgagor  himself,  or  by  the  defendant,  whc 


OCTOBER  TERM,  1862.  105 

Banta  v.  Vreeland. 

purchased  the  premises  from  the  mortgagor.  The  defendant, 
by  liis  answer,  expressly  admits  that  ho  never  paid  the 
mortgage  debt,  or  any  part  of  it,  but  alleges  that  he  has  been 
informed,  and  believes  that  the  debt  was  paid,  or  secured  to 
be  paid,  or  in  some  other  way  arranged,  satisfied,  and  dis- 
charged, cither  by  the  mortgagee,  the  mortgagor,  or  by  some 
other  person,  but  when  or  how  the  defendant  has  been  unable 
to  ascertain. 

The  bill  charges  that,  at  the  time  of  the  conveyance  of 
the  mortgaged  premises  to  the  defendant  by  the  mortgagor, 
the  mortgage  was  unpaid,  and  a  lien  upon  the  premises;  and 
that  the  defendant  assumed  the  payment  of  the  debt,  as  a- 
part  of  the  consideration  of  the  conveyance.  This  is  expressly 
denied  by  the  answer.  The  direct  issue  thus  made  by  the 
pleadings  is,  whether  the  mortgage  in  controversy  was  a  sub- 
sisting lien  upon  the  mortgaged  premises  at  the  time  they 
were  conveyed  to  the  defendant.  If  it  was,  we  have  his  ex- 
plicit acknowledgment  that  it  has  not  since  been  paid. 

The  mortgaged  premises  were  conveyed  to  the  defendant 
on  the  seventeenth  of  November,  1856.  The  cancellation 
was  made  on  the  seventeenth  of  October,  ISlJO.  If  the  debt 
was  paid  before,  or  at  the  time  of  the  conveyance,  the  bond 
and  mortgage  would  then,  in  the  usual  course  of  business, 
have  been  delivered  up  and  cancelled.  But  they  remained 
in  the  hands  of  the  complainant  for  four  years  afterwards  in 
full  force,  unquestioned  either  by  the  obligor  in  the  bond,  or 
by  the  defendant,  who  owned  the  mortgaged  premises.  If 
paid,  it  must  have  been  by  the  obligor,  or  with  his  knowledge. 
He  has  been  examined.  Ho  is  a  brother  of  the  defendant, 
and  has  no  apparent  motive  to  color  or  distort  the  evidence 
against  him.  He  testifies  that  there  were  two  mortgages 
on  the  property  when  he  conveyed  to  the  defendant.  The 
first  was  a  $300  mortgage,  executed  by  his  mother  and  him- 
self, given  in  1844  or  1845,  and  assigned  by  him,  as  the 
executor  of  the  mortgagee,  to  the  complainant.  This  is  the 
mortgage  in  controversy.  He  distinctly  admits  that  this 
mortgage  was  not  paid,  but  that  both  mortgages  were  sub- 


106  CASES  IN  CHANCERY. 


Bant  a  v.  Vreeland. 


si.sting  encumbrances  when  he  conveyed  to  the  defendant.  It 
is  proved,  moreover,  by  this  witness  and  by  John  Wiekham, 
that  at  the  time  of  the  sale  of  this  property  by  the  mortgagor 
to  the  defendant  there  was  a  meeting  between  them  at  the 
house  of  the  complainant  to  settle  the  amount  due  to  the 
complainant  upon  his  two  mortgages ;  that  the  amount  was 
ascerlained  by  calculation  to  be  over  $1200,  and  that  a 
memorandum  of  the  amount  was  made  by  the  defendant, 
and  given  to  the  complainant.'  That  memorandum,  in  the 
handwriting  of  the  defendant,  is  produced  as  an  exhibit.  It 
is  as  follows:  "Made  out  by  Thomas  B.  Vreeland — amount 
of  both  mortgages  up  to  January  16th,  1857,  is  $1212.11." 

The  force  of  this  evidence  is  attempted  to  be  impaired  by 
alleging  that  the  evidence  does  not  show  that  the  papers 
were  in  the  hands  of  Thomas  B.  Vreeland.  Suppose  they 
were  not.  The  facts,  as  clearly  proven,  are  that  the  mort- 
gagor and  the  defendant,  who  was  about  to  purchase,  went 
to  the  house  of  the  complainant  to  ascertain  the  amount  due 
to  the  complainant  upon  the  mortgages.  There  was  no  ques- 
tion as  to  their  existence,  and  no  pretence  that  either  of  them 
had  been  paid.  The  only  question  was,  how  much  was  due 
upon  them.  The  papers  were  produced,  the  calculation  of 
interest  was  made,  the  amount  due  ascertained,  reduced  to 
writing  by  the  defendant  himself,  and  given  to  the  complain- 
ant. Whether  the  bond  and  mortgage  was  actually  in  the 
hands  of  the  defendant  was  totally  immaterial.  It  was  in 
his  presence  open  to  examination.  It  was  treated  as  a  sub- 
sisting debt,  both  by  the  mortgagor,  who  was  about  to  sell, 
and  by  the  defendant,  who  was  about  to  purchase  and  to  as- 
sume the  payment  of  the  mortgage  debt  as  a  part  of  the  con- 
sideration of  the  purchase. 

It  is  certainly  a  remarkaUe  circumstance,  the  effect  of 
which  can  be  overcome  only  by  very  clear  evidence,  that  the 
complainant  himself  believed  and  .icknowledged  that  the 
mortgage  was  satisfied,  and  assented  to  its  can»\,llution.  But 
the  mistake,  I  think,  is  satisfactorily  accounted  for.  He  was 
an  aged  man,  and  manifestly  very  ignorant  of  business. 


OCTOBER  TERM,  1862.  107 

Banta  v.  Vreeland. 

There  had  been  a  proposal,  at  one  time  to  take  up  the  mort- 
gage in  question  by  giving  another.  He  had  held  notes  for 
a  part  of  the  indebtedness.  He  was  under  no  mistake  in 
regard  to  the  amount  due  him.  For  that  he  relied  upon  the 
memorandum  given  to  him  by  the  defendant.  At  no  time 
did  he  admit  that  the  whole  amount,  as  now  claimed,  was 
not  due.  His  mistake  was  in  regard  to  the  securities  which 
he  held  for  the  debt.  He  supposed  that  the  entire  debt  was 
covered  by  the  last  mortgage  or  by  notes.  This  is  very 
clearly  shown  to  be  a  mistake. 

The  sole  question  raised  upon  the  pleadings  and  evidence  is, 
whether  the  mortgage  is  a  subsisting  lien  upon  the  mortgaged 
premises.  The  evidence  upon  this  point  leaves  no  room  for 
doubt. 

Equity  will  relieve  where  an  instrument  has  been  delivered 
up  or  cancelled  through  fraud  or  mistake.  Miller  v.  Wack, 
Saxton  204 ;  Trenton  Banking  Company  v.  Woodruff,  1 
Green's  Cli.  R.  117;  1  Stores  Eq.  Jw\,  §  167. 

It  is  urged,  on  the  part  of  the  defendant,  that  to  entitle  a 
party  to  relief  on  the  ground  of  mistake,  it  must  be  of  such 
a  fact  as  he  could  not  by  reasonable  diligence  have  obtained 
knowledge  of.  If  otherwise,  it  is  culpable  negligence,  against 
which  equity  will  not  relieve.  1  Story's  Eq.  Jur.,  §  146  j 
Deare  v.  Can;  2  Green's  Ch.  J?.  513. 

The  principle  is  usually  applied  in  relieving  against  contracts 
entered  into  under  a  mistake,  though  it  is  doubtless  susceptible 
of  a  wider  application.  The  present  case,  however,  does  not 
fall  within  the  operation  of  the  principle.  The  complainant 
received  no  consideration  for  the  act — the  defendant  gave  none. 
The  complainant  entered  into  no  engagement  from  which  he 
asks  relief.  Under  a  mistaken  impression  that  the  mortgage 
was  satisfied,  he  consented  to  its  cancellation.  It  is  clearly 
against  conscience  that  the  defendant  should  avail  himself  of 
the  mistake  to  escape  the  payment  of  an  honest  debt. 

The  complainant  is  entitled  to  a  decree  for  the  mortgage  debt. 

CITKD  in  Freeholders  of  Middlesex  v.  Thomas,  5  C.  E.  Gr.  42 ;  Dudley  r. 
Bergen,  8  C.  E.  Gr.  400. 


108  CASES  IN  CHANCERY. 


Beatty's  cx'r  v.  Lalor. 


JOSEPH  G.  BREARLEY,  executor  of  Catliarinc  Bcatty,  vs. 
JEREMIAU  LALOR  and  others. 

On  a  bill  filed  to  settle  tlie  construction  of  a  will  containing  the  following 
residuary  clause,  viz.  "all  the  residue  and  remainder  of  my  moneys  not 
above  disused  of,  that  is  of  money*  which  1  hare  at  the  time  of  my 
decease,  I  direct  to  be  equally  divided  among  my  children  and  grand- 
children living  at  the  time  of  my  decease ;" — "whatever  personal  pro- 
perty is  not  herein  before  disposed  of  I  direct  to  be  sold  by  my  execu- 
tors, and  the  moneys  thereon  arising  to  be  divided  equally  between  my 
son  and  my  two  daughters,"  it  was  held  that,  by  these  two  clauses,  a 
clear  distinction  is  made  between  moneys  and  personal  properly.  The 
residue  of  the  one  is  given  to  all  the  children  and  grandchildren  equally  ; 
what  remains  of  the  oiher  not  disposed  of  is  to  be  divided  equally  be- 
tween the  children. 

It  is  a  well  settled  rule  of  construction,  that  by  a  bequest  of  money,  bonds, 
mortgages,  promissory  notes,  or  other  securities  for  the  payment  of 
money  will  not  pass,  unless  it  appears  by  the  will  or  from  the  condition 
and  circumstances  of  the  testator's  estate  that  it  was  her  intention  to 
pass  them.  The  term  money  must  be  understood,  in  its  legal  or  popular 
sense,  to  mean  gold  or  silver,  or  the  lawful  currency  of  the  country,  or 
bank  notes  or  money  deposited  in  bank  for  safe  keeping. 

The  bequest  of  money  in  this  case  does  not  include  funds  in  the  savings 
bank — that  is  in  the  nature  cf  an  investment  drawing  interest,  and  is 
not  usually  subject  to  the  immediate  order  of  the  owu*- 

C.  S.  Green,  for  complainant. 
Jjeasley,  for  defendant. 

THE  CHANCELLOR.  The  bill  is  filed  to  settle  the  construc- 
tion of  the  will  of  Catharine  Beatty,  and  for  directions  to 
the  executor  in  the  settlement  of  the  estate.  The  question 
arises  upon  the  residuary  clause  or  clauses  of  the  will,  which 
are  as  follows,  viz.  "all  the  residue  and  remainder  of  my 
moneys  not  above  disposed  of,  that  is  of  moneys  which  I 
have  at  the  time  of  my  decease,  I  direct  to  be  equally  divided 
among  my  children  and  grandchildren  living  at  the  time  of 
my  decease  j"  "  whatever  personal  property  is  not  herein  be- 
fore disposed  of  I  direct  to  be  sold  by  my  executors,  and  the 


OCTOBER  TERM,  1862.  109 

Beatty's  ex'r  v.  Lalor. 

moneys  thence  arising  to  be  divided, equally  between  my  son 
and  my  two  daughters,  and  in  case  of  the  decease  of  either 
of  them  during  my  life,  the  share  which  said  deceased  one 
would  have  taken,  if  living,  shall  go  to  and  among  his  or  her 
children,  in  equal  parts." 

By  these  two  clauses,  a  clear  distinction  is  drawn  between 
her  moneys  and  her  personal  property.  The  residue  of  the 
one  is  given  to  all  her  children  and  grandchildren  equally; 
what  remains  of  the  other  not  disposed  of  she  directs  to  be 
divided  equally  between  her  children. 

In  Mann  v.  Executors  of  Jfonn,  1  Johns.  Ch.  R.  231,  it 
•was  held,  by  Chancellor  Kent,  that  in  a  bequest  of  "  moneys," 
there  being  nothing  in  the  will  to  show  that  the  testator  used 
the  word  "  moneys  "  in  a  different  or  more  extended  sense,  it 
must  be  understood,  in  its  legal  and  popular  sense,  to  mean 
gold  or  silver,  or  the  lawful  currency  of  the  country,  or  bank 
notes,  where  they  are  known  and  used  as  cash,  or  money  de- 
posited in  bank  for  safe  keeping,  and  not  to  comprehend 
notes,  bonds,  mortgages,  or  other  securities. 

The  same  construction  has  been  adopted  in  numerous  other 
cases,  which  are  collected  in  2  Roper  on  Lcgacks  282,  (cd. 
1848) ;  2  Williams  on  Executors  1024,  (ed.  1849). 

It  is  a  well  settled  rule  of  construction,  that  by  a  bequest 
of  money,  bonds,  mortgages,  promissory  notes,  or  other  se- 
curities for  the  payment  of  money,  will  not  pass  unless  it  ap- 
pears by  the  will,  or  from  the  condition  and  circumstances  of 
the  testator's  estate,  that  it  was  his  intention  to  pass  them. 

I  have  been  unable  to  discover  anything  in  the  will  of  the 
testatrix,  or  in  the  circumstances  of  her  estate,  which  indi- 
cates a  different  intent  from  that  indicated  by  the  natural 
and  legal  import  of  the  terms  used.  It  is  very  difficult  to 
determine  what  the  intention  of  the  testatrix  was  in  the  re- 
siduary clauses.  It  seems  highly  probable,  either  that  there 
was  a  large  accumulation  of  money  in  the  hands  of  the  tes- 
latrix  after  the  date  of  the  will,  or  that  the  provisions  of 
the  will  were  adopted  from  previously  executed  wills,  with- 

VOL.  ii.  Q 


110  CASES  IN  CHANCERY. 

Bcatty's  ex'r  t.  Lalor. 

out  regard  to  the  changes  which  had  occurred  in  the  condition 
of  the  estate. 

There  are  considerations  growing  out  of  some  of  the  pro- 
visions'of  the  will  which  create  an  impression  that  the  tes- 
tatrix, in  disposing  of  the  residue  of  the  money  which  she 
might  have  at  her  death,  referred  merely  to  the  gold  which 
was  kept  in  a  trunk  at  bank,  a  portion  of  which  was  given 
in  specific  legacies.  But  so  far  as  any  intention  of  the  tes- 
tatrix is  fairly  inferable  from,  other  portions  of  the  will,  it 
accords  with  the  legal  import  of  the  terms  of  the  residuary 
bequests.  The  testatrix  left  $17,000  of  personal  estate, 
about  one  half  of  which  is  included  in  the  residue.  The 
estate  consisted  of  specie  and  bank  notes  in  the  house,  gold 
in  a  trunk  at  bank,  money  deposited  in  bank,  money  in  the 
savings  bank,  bonds,  mortgages,  and  other  securities,  besides 
household  furniture  and  other  chattels.  The  chattels,  other 
than  her  money  and  securities,  were  specifically  bequeathed. 

She  left  three  children  and  sixteen  grandchildren,  to  all  of 
whom  she  gave  special  legacies.  By  these  .special  legacies, 
including  numerous  charitable  bequests,  she  disposed  of 
nearly  one  half  of  her  estate,  and  disposed  of  the  remainder 
by  the  two  residuary  clauses  already  cited,  by  one  of  which 
she  directs  the  residue  of  her  moneys  to  be  divided  equally 
among  her  children  and  grandchildren  living  at  her  decease. 
Either  of  these  clauses,  in  the  absence  of  tlie  other,  would 
undoubtedly  carry  the  entire  residue  of  the  personal1  estate; 
in  the  one  case,  to  her  three  children  equally,  and  in  the 
other,  to  all  her  children  and  grandchildren  equally.  Stand- 
ing together,  they  indicate  a  clear  intention  to  give  a  portion 
of  her  estate  in  each  way.  If  the  term  money  is  extended 
beyond  its  natural  and  legal  import  to  include  stocks  and 
other  securities,  it  will  include  the  whole  estate,  for  the 
chattels  were  all  specifically  bequeathed,  and  the  second 
clause  will  lx)  inoperative.  The  first  clause  will  include  the 
cash  in  the  house,  whether  in  specie  or  notes,  the  gold  in 
the  trunk  at  bank,  and  the  deposit  in  bank.  It  will  not  in- 
clude the  .money  in  the  savings  fund;  that  is  in  the  nature 


OCTOBER  TERM,  1862.  Ill 

Beatty's  ex'r  v.  Lalor. 

of  an  investment  drawing  interest,  and  is  not  usually  subject 
to  the  immediate  order  of  the  owner,  like  money  deposited 
at  bank,  but  can  only  be  called  in,  like  other  investments, 
upon  notice.  Out  of  this  part  of  the  residuary  estate  must 
be  deducted  the  money  specifically  bequeathed  in  the  pre- 
vious part  of  the  will.  By  the  phrase,  "residue  and  remain- 
der of  my  moneys,"  the  testatrix  could  not  have  intended 
what  should  remain  of  her  moneys  after  paying  all  the  pecu- 
niary legacies  previously  given  ;  for  she  had  given  pecuniary 
legacies  to  an  amount  far  exceeding  all  the  moneys  she  had, 
or  which  there  was  any  reasonable  probability  of  her  having 
at  her  death.  To  adopt  this  construction  would  necessarily 
defeat  the  legacy.  Besides  the  natural  import  of  the  phrase 
is,  that  portion  of  the  money  which  has  not  been  previously 
disposed  of.  A  bequest  of  the  residue  of  the  personal  estate 
is  a  gift  only  of  so  much  as  remains  after  all  the  legacies  are 
paid,  because  the  entire  personal  estate  constitutes  the  ap- 
propriate fund  for  the  payment  of  legacies.  But  the  money 
in  hand  does  not  constitute  a  fund  for  the  payment  of  lega- 
cies, any  more  than  the  other  parts  of  her  personal  estate, 
from  which  the  moneys  are  here  carefully  distinguished. 

The  general  residue  of  the  estate  will  be  divided,  under 
the  second  clause,  between  the  three  children  of  the  testa- 
trix. This  construction  gives  effect  and  operation  to  each 
clause  and  provision  of  the  will.  In  no  other  way  can  that 
be  done.  The  bulk  of  the  estate  is  thus  given  equally  to  the 
three  surviving  children  of  the  testatrix,  who  would  natu- 
rally be  the  favorite  objects  of  her  bounty.  There  is  a 
strong  presumption  that  she  did  not  intend  to  divide  the 
bulk  of  her  estate  among  her  grandchildren,  many  of  whom 
were  minors,  for  no  provision  is  made  for  the  investment  or 
disposition  of  the  money  until  they  came  of  age ;  whereas, 
in  regard  to  the  special  bequests  to  her  grandchildren,  of 
niuoh  smaller  amount,  she  has  specially  directed  that  the 
share  of  such  as  are  minors  shall  be  put  out  at  interest,  and 
paid  to  them  as  they  severally  come  of  age.  Nor  does  there 
seem  to  be  any  satisfactory  reason  why  the  testatrix,  in  ad- 


112  CASES  IN  CHANCERY. 

Gordon  ».  Torrey. 

dition  to  a  specific  legacy,  by  way  of  remembrance  to  each 
of  her  children  and  grandchild  rcn.  should  also  have  given  a 
special  pecuniary  legacy  to  each,  in  nearly  equal  amounts,  if 
she  intended  eventually  to  divide  her  whole  estate  equally 
between  them.  But  whatever  weight  these  considerations 
may  be  entitled  to  in  support  of  the  construction  adopted, 
in  giving  to  the  term  money  its  natural  and  legal  import, 
there  is  clearly  nothing  in  the  will  which  indicates  a  different 
intent  iu  the  mind  of  the  testatrix.  I  entertain  no  doubt, 
therefore,  as  to  the  proper  construction  of  the  instrument. 


LETITIA  GORDON  vs.  EDWARD  P.  TORREY  and  others. 

In  a  dispute  between  a  mortgagee  and  lien  claimants,  as  to  the  priority  of 
their  respective  encumbrances  on  the  mortgaged  premises,  where  it  was 
objected  to  the  validity  of  the  Jien  that  the  building  was  not  erected  by 
the  owner  of  the  land,  nor  by  his  consent  expressed  in  writing,  and  it 
appeared  that,  pending  the  erection  of  the  building,  the  owner  had  con- 
veyed away  the  land,  but  that  the  conveyance  was  merely  as  collateral 
security  for  the  payment  of  a  debt  due  to  the  grantee,  that  the  deed  was 
intended  simply  as  a  mortgage,  and  that  on  satisfaction  of  the  debt  the 
land  was  reconveyed — held,  that  these  circumstances  effectually  dispose 
of  the  objection  urged  against  the  validity  of  the  lien. 

A  change  of  ownership  during  the  progress  of  the  building  does  not  make 
a  new  commencement  of  the  building,  nor  affect  the  validity  of  the  lien 
which  attached  at  the  commencement  of  the  building. 

Nor  will  tl'.e  interruption  of  the  work  for  a  short  period,  and  its  subsequent 
resumption  without  a  change  of  its  original  design  and  character,  con- 
stitute a  new  commencement,  or  affect  the  attachment  of  the  lien  when 
the  building  was  originally  commenced. 

The  proceeding  under  the  statute  to  enforce  the  lien  by  said  deed  judgment 
is  a  proceeding  in  rem.  It  does  not  create  the  lien  any  more  than  a  pro- 
ceeding and  decree  for  the  foreclosure  of  a  mortgage.  There  is  nothing 
in  the  statute  which  requires  that  the  time  of  the  commencement  of  the 
building,  and  the  consequent  attaching  of  the  lien,  should  be  specified 
either  in  the  lien  itself  or  in  the  record  of  the  judgment. 

It  is  no  objection  to  the  validity  of  the  liens  that  the  mortgagor  procured 
them  to  be  filed,  or  that  he  concealed  their  existence  from  the  mortgagee 
at  the  time  of  obtaining  the  loan  for  which  the  mortgage  was  given.  If 
the  mortgagor  was  actuated  by  fraudulent  motives,  it  cannot  affect  the 


OCTOBER  TERM,  1862.  113 

Gordon  v.  Torrey. 

rights  of  the  lienholders.    The  validity  of  the  liens  cannot  depend  upon 
the  motives  which  suggested  their  being  filed. 


I.  W.  Scudder,  for  complainant. 
Slaiffht,  for  lienholders. 

THE  CHANCELLOR.  The  bill  is  filed  to  foreclose  a  morf/- 
gage  given  to  the  complainant,  by  Edward  P.  Torrey,  upon 
a  house  and  lot  in  Jersey  City.  The  only  question  in  dispute 
between  the  parties  is,  whether  the  complainant's  mortgage 
is  a  prior  encumbrance  to  the  liens  of  the  mechanics  and  ma- 
terialmen  for  work  done  and  materials  furnished  in  the  erec- 
tion of  the  house  upon  the  premises.  The  complainant's 
mortgage  is  dated  on  the  eleventh  and  recorded  on  the 
thirteenth  of  April,  1861.  The  liens  were  filed  between  the 
twenty-seventh  of  July,  and  the  twrenty-seveuth  of  August, 
inclusive,  in  the  same  year.  The  building  was  commenced, 
according  to  the  testimony  of  Torrey,  the  owner  and  builder, 
in  the  fall  of  1859.  The  foundation  was  then  built.  The 
building  was  resumed  in  the  following  spring  about  May, 
and  completed,  he  thinks,  in  May,  1861.  So  far  as  can  be 
ascertained  from  the  liens  filed,  the  work  and  materials  which 
form  the  subject  of  the  lien  were  done  and  furnished  between 
September,  1860,  and  May,  1861. 

1.  It  is  objected  to  the  validity  of  the  lien  that  the  build- 
ing was  not  erected  by  the  owner  of  the  land,  nor  by  his 
consent  expressed  in  writing.  The  legal  title  was  in  Torrey, 
the  builder,  from  the  nineteenth  of  September,  1859,  until 
the  eleventh  of  August,  1860,  when  he  conveyed  it  to  Thomas 
B.  Oakley.  On  the  tenth  of  April,  1861,  it  was  reconveyed 
by  Oakley  to  Torrey.  Torrey  testifies,  and  the  fact  does  not 
seem  to  be  at  all  questioned,  that  he  conveyed  the  land  to 
Oakley,  merely  as  collateral  security  for  the  payment  of  a 
debt  due  from  him  to  Oakley ;  that  the  deed  was  intended 
simply  as  a  mortgage,  and  that  upon  the  satisfaction  of  the 
debt  the  land  was  recouveyed.  This  effectually  disposes  of 


114  CASES  IN  CHANCERY. 

Gordon  t.  Torrey. 

the  objection.  But  admitting  the  title  to  have  been  absolute 
in  Oakley,  it  is  not  perceived  that  the  rights  of  the  lienholdcrs 
are  affected.  The  building  was  commenced  by  Torrey  while 
the  title  was  in  him.  The  foundation  was  then  built.  The 
liens  attached  at  the  commencement  of  the  building  irpon  the 
estate  of  Torrey,  and  the  title  passed  to. Oakley,  and  was 
reconveyed  to  Torrey  subject  to  the  encumbrance  of  the  liens. 
A  change  of  ownership  during  the  progress  of  the  building 
does  not  make  a  new  commencement  of  the  building  nor  affect 
the  validity  of  the  encumbrance.  Hern  v.  Hopkins,  13  Serg. 
&  R.  269 ;  Pennock  v.  Hooier,  5  Rawle  207 ;  Edwards  v. 
Derrickson,  4  Dutcher  39. 

Nor  will  the  interruption  of  the  work  for  a  short  period, 
and  its  subsequent  resumption  without  a  change  of  its  original 
design  and  character,  constitute  a  new  commencement,  or 
affect  the  attaching  of  the  lien  when  the  building  was  ori- 
ginally commenced.  Amo*ican  Fire  Insurance  Co.  v.  Prin- 
gle,  2  Serg.  &  R.  138  ;  Hem  v.  Hopkins,  13  Serg.  &  E.  269. 

After  the  conveyance  to  Oakley,  the  building  was  con- 
tinued under  Torrey 's  directions  ami  for  his  benefit.  Oakley 
never  interfered  with  his  operations  nor  questioned  his  right, 
nor  is  he  now  in  court  setting  up  title  in  himself  or  question- 
ing the  right  of  Torrey  or  the  validity  of  the  liens. 

2.  It  is  objected  that  the  time  when  the  building  was 
commenced  is  not  specified,  either  in  the  lien  filed  or  in  tho 
record  of  the  judgment,  and  that  the  encumbrance  therefore 
cannot  attach  until  the  actual  entry  of  the  judgment.  Tho 
statute,  in  express  terms,  make  the  debt  a  lien  from  the 
commencement  of  the  building.  Nix.  Dig.  526,  §  11.  The 
proceeding  to  enforce  the  lien  is  a  proceeding  in  rem.  It  does 
uot  create  the  lien  any  more  than  a  proceeding  and  decree 
for  the  foreclosure  of  a  mortgage  creates  the  encumbrance. 
There  is  nothing  in  the  statute  which  requires  that  the  time 
of  the  commencement  of  the  building,  and  the  consequent 
attaching  of  the  lien  should  be  specified,  either  in  the  lien 
itself  or  in  the  recorfl  of  the  judgment.  It  would  seem  that 
any  such  entry  either  in  the  lien  or  in  the  judgment,  except 


OCTOBER  TERM,  1862.  115 

Gordon  v.  Torrey. 

where  the  fact  was  in  some  way  put  in  issue,  and  found  by 
the  jury,  would  be  unauthorized  and  unavailing  as  evidence 
of  the  fact.  It  is  certainly  a  matter  of  regret  that  so  ma- 
terial a  circumstance,  affecting  the  title  to  real  estate  as  the 
inception  of  the  encumbrance,  should  be  left  to  depend  upon 
the  parol  testimony  of  witnesses  often  deeply  interested  in 
regard  to  facts  of  equivocal  character,  which  may  constitute 
the  commencement  of  a  building.  But  so  is  the  statute,  and 
the  court  cannot  add  to  its  requirements.  It  may  be  true, 
as  insisted  by  the  complainant's  counsel,  that  in  the  absence 
of  parol  evidence  of  the  time  of  the  commencement  of  the 
building  the  record  of  the  judgment  can  furnish  no  evidence 
of  the  lien  prior  to  the  date  of  the  work  done,  or  materials 
furnished  as  specified,  or  to  the  actual  entry  of  the  judgment. 
But  that  question  does  not  arise  in  the  present  case.  The 
fact  is  unquestioned,  that  the  building  was  nearly  completed 
when  the  complainant's  mortgage  was  given. 

There  is  nothing  in  the  case  to  justify  a  doubt  in  regard 
to  the  bona  fides  of  the  claims  of  the  lienholders.  The  evi- 
dence shows  that  the  work  was  done  and  the  materials  fur- 
nished as  charged  by  the  claimants,  and  that  the  debts  have 
not  been  paid.  This  is  proved,  both  by  the  evidence  of  the 
lienholders  themselves  and  of  Torrey,  the  owner  and  builder. 
There  is  nothing  tending  to  discredit  their  testimony. 

If  it  be  admitted  that  Torrey  acted  in  violation  of  good 
faith  in  concealing  or  in  failing  to  disclose  the  existence  of 
the  liens  at  the1  time  he  procured  the  loan  from  the  complain- 
ant for  which  the  mortgage  was  given,  it  cannot  affect  the 
legal  or  equitable  rights  of  the  lienholders.  Nor  are  those 
rights  at  all  impaired,  if  it  be  admitted  that  the  liens  were 
filed  at  the  instance  of  Torrey.  He  may,  in  perfect  consis- 
tency with  good  faith  and  fair  dealing,  have  desired  that  the 
just  claims  of  the  mechanics  and  materialmen  should  be  se- 
cured upon  the  building,  in  preference  to  the  Oakley  mort- 
gage, which  he  then  believed,  and  subsequently  proved  to  be 
fraudulent.  But  if  Torrey  was  actuated  by  fraudulent  motives 
it  could  not  affect  the  rights  of  the  lieuholders.  The  validity 


116  CASES  IN  CHANCERY. 

Corlea  v.  Lashley. 

of  tlic  liens  cannot  depend  upon  the  motives  which  suggested 
their  being  filed. 

There  is  nothing  in  the  evidence  to  affect  the  validity  of 
the  liens,  or  their  priority  to  the  complainant's  mortgage. 

It  will  be  decreed  accordingly. 

* 

CITED  in  Robins  v.  Sunn  &  Barber,  5  Vroom  323. 


Jonx  COBLES  and  wife  vs.  PHILIP  LASHLEY  and  JOHN 

ABBOTT. 

When,  on  the  foreclosure  of  a  mortgage,  an  execution  had  been  issued, 
which  by  mistake  directed  the  sale  of  land  not  included  in  complain- 
ant's mortgage,  nor  described  in  his  bill,  and  by  virtue  of  which  the 
sheriff  had  sold  such  land,  an  injunction  will  issue  to  restrain  the  sheriff 
from  delivering  the  deed. 

On  a  sheriff's  sale  of  land  consisting  of  different  parcels,  the  general  rule 
is,  that  if  the  land  is  plainly  divisible,  it  should  be  sold  in  different  par- 
cels, so  as  to  secure  the  highest  price. 


Motion  to  dissolve  an  injunction. 
J.  M.  Scovcl,  for  the  motion. 
Cannon,  contra. 

THE  CHANCELLOR.  The  bill  was  filed  by  the  complainants 
to  restrain  the  delivery  of  a  deed  by  the  sheriff  of  Gloucester 
to  Philip  Lashley  for  three  tracts  of  land,  sold  by  him  on  the 
fourth  of  October,  eighteen  hundred  and  sixty-two,  by  virtue 
of  an  execution  issued  out  of  the  Gloucester  Circuit  Court. 
The  defendants,  having  answered  the  bill,  now  move  to  dis- 
solve the  injunction. 

There  is  no  dispute  as  to  the  material  facts  of  the  case 
upon  which  the  complainants'  equity  rests.  On  the  third  of 
March,  eighteen  hundred  and  sixty-two,  a  bill  was  filed  in 
the  Gloucester  Circuit  by  Philip  Lashley  to  foreclose  a  mort- 
gage, dated  on  the  fourth  of  April,  eighteen  hundred  and 
fifty-seven,  given  by  James  M.  Muller  and  wife  to  John 


OCTOBER  TERM,  1862.  117 

Codes  i'.  Lashley. 

Lash  Icy,  jun.,  to  secure  the  payment  of  twelve  hundred  dol- 
lars, and  by  the  mortgagee  assigned  to  Philip  Lashlcy.  The 
mortgage  covered  two  tracts  of  land,  the  one  containing 
seventy-one  acres,  and  the  other  containing  sixty-eight  acres 
and  ninety-eight  hundredth^  of  an  acre.  The  bill  described 
the  mortgaged  premises,  and  prayed  a  decree  for  foreclosure 
and  sale.  John  Abbott  held  a  prior  mortgage,  given  by 
John  Lashley,  jun.,  upon  the  same  premises,  and  also  upon 
a  third  tract  containing  one  hundred  and  ten  acres.  He 
was  made  .a  defendant  to  Lashley 's  bill  of  complaint,  and  by 
his  answer  he  claimed  to  be  a  prior  encumbrancer  upon  the 
premises  described  in  the  complainants'  bill. 

Tlie  master  reported  that  the  two  mortgages  were  upon 
the  same  premises,  and  a  decree  was  made,  pursuant  to  the 
prayer  of  the  bill,  for  the  sale  of  the  premises  covered  by  the 
complainants'  mortgage.  An  execution  thereupon  issued, 
not  only  for  the  sale  of  the  premises  covered  by  the  com- 
plainants' mortgage,  but  also  for  the  sale  of  the  one  hundred 
and  ten  acre  tract  included  in  Abbott's  mortgage,  but  not 
covered  by  the  mortgage  of  Lashlcy,  the  complainant.  The 
sheriff  advertised  the  three  tracts  for  sale,  as  required  by 
the  execution,  and  on  the  day  of  sale  the  entire  premises 
were  offered  and  struck  off  as  one  tract  to  Philip  Lashley  for 
five  hundred  dollars. 

At  the  time  the  bill  of  foreclosure  was  filed,  the  title  to 
the  one  hundred  and  ten  acre  tract  was  in  Mary  Corlcs,  the 
wife  of  John  Corles,  who  are  complainants  in  this  suit. 
Neither  Mary  Corles,  nor  her  husband,  nor  her  immediate 
grantor,  who  acquired  title  to  the  one  hundred  and  ten  acre 
tract  on  the  sixth  of  January,  1858,  were  parties  to  the  bill 
of  foreclosure. 

It  is  evident,  upon  this  statement  of  facts,  that  the  land 
of  Cork's  and  wife  has  been  sold  by  virtue  of  an  execution 
which  was  not  authorized  by  the  decree  nor  by  any  of  the 
previous  proceedings  in  the  cause.  The  decree  properly 
conformed  to  the  prayer  of  the  bill.  It  directs  a  sale  only 
of  the  premises  described  in  the  bill.  The  decree  never  is, 


118  CASES  IX  CHANCERY. 

(Dories  v.  Laslilcy. 

and  upon  obvious  principles  cannot  be  broader  than  the 
prayer  for  relief.  If  it  is  essential  to  the  purposes  of  equity 
that  laud  not  covered  by  the  complainants'  mortgage  should 
be  sold  under  the  decree,  the  bill,  both  in  its  statements  and 
in  its  prayer,  must  be  framed  accordingly.  The  whole  diffi- 
culty has  arisen  from  a  misapprehension  as  to  the  extent  of 
the  premises  covered  by  Abbott's  mortgage.  It  was  no 
doubt  understood  to  cover  precisely  the  same  premises  as 
were  included  in  Lashley's  mortgage.  This  accounts  for  the 
frame  of  the  bill  and  of  the  decree  and  of  the  mistake  iu 
the  master's  report. 

It  was  suggested,  upon  the  argument,  that  the  injunction 
might  be  retained  as  to  the  one  hundred  and  ten  acre  tract 
owned  by  Mary  Corles,  and  dissolved  as  to  the  land  actually 
covered  by  the  decree.  But  this  would  serve  only  to  embar- 
rass and  complicate  still  further  the  rights  of  the  parties. 
Had  the  different  tracts  been  sold  separately,  that  course 
might  perhaps  have  been  adopted.  But  they  were  sold  for 
one  gross  sum.  How  is  the  price  for  which  the  one  hundred 
and  ten  acre  tract  was  Sold  to  be  determined  ?  and  how  is 
the  consideration  which  the  purchaser  is  to  pay  for  the  re- 
maining tracts  to  be  ascertained?  Besides,  there  are  equities 
subsisting  between  the  owners  of  the  different  tracts  which 
can  only  be  settled  by  a  proper  decree. 

The  mode  of  sale  appears  to  have  been  improper.  The 
land,  though  held  in  distinct  tracts  by  different  owners,  was 
sold  in  one  entire  parcel.  The  general  rule  is,  that  if  the 
land  is  plainly  divisible,  it  should  be  sold  in  different  par- 
cels, so  as  to  secure  the  highest  price.  Woody  v.  Mondl,  1 
Johns.  Ch.  R.  505 ;  Merwln  v.  Smitii,  I  Green's  Ch.  It.  196. 

But  this  point  is  not  relied  on  as  a  ground  for  sustaining 
the  injunction. 

The  injunction  must  be  retained,  and  an  opportunity  af- 
forded to  have  the  errors  in  the  proceedings  corrected. 


OCTOBER  TERM,  1862.  119 


Executors  of  Clarke  v.  Canfield. 


EXECUTORS  OF  ELIZABETH  CLARKE  vs.  EDGAR  W.  CAN- 
FIELD  and  others. 

The  statute  (Nix.  Diy.  211,  \  4,)  which  raises  a  presumption  of  the  death 
of  a  person  absenting  himself  for  seven  years  without  being  heard  from, 
was  designed  to  furnish  a  legal  presumption  of  the  time  of  the  death,  as 
well  as  of  the  fact  of  the  death. 

In  the  absence  of  the  statute,  the  presumption  would  be  that  the  absent 
person  is  still  alive.  This  presumption  of  the  continuance  of  life  only 
ceases  when  it  is  overcome  by  the  countervailing  presumption  of  death 
afforded  by  the  statute,  which  is  not  until  the  end  of  seven  years. 

The  presumption  of  death  which  arises  at  the  expiration  of  seven  years 
cannot  operate  retrospectively. 

Browning,  for  complainants. 
Grey,  for  defendants. 

THE  CHANCELLOR.  Elizabeth  Clarke,  by  her  will,  bear- 
ing date  on  the  twenty-seventh  of  August,  1852,  gave  to  her 
grand  nephew,  Edgar  W.  Canfield,  *a  legacy  of  five  hundreU 
dollars.  After  other  legacies,  she  gave  the  residue  of  her 
estate  to  Elizabeth  Woolston.  The  testatrix  died  on  the 
fourth  of  December,  1852,  having  left  assets  sufficient  to  pay 
all  the  legacies  given  by  her  will.  The  executors,  by  their 
bill,  admit  the  legacy  to  be  in  their  hands,  but  allege  that 
they  are  unable  to  ascertain  whether  Canfield,  the  legatee,  is 
actually  dead,  nnd  if  dead,  whether  he  died  before  or  after 
the  testatrix.  If  he  died  before  the  testatrix,  the  legacy 
lapsed,  and  falls  into  the  residue  of  the  estate.  If  he  still 
survives,  it  belongs  to  the  legatee.  If  he  died  after  the  tes- 
tatrix, it  belongs  to  his  infant  son  and  sole  next  of  kin.  The 
bill  prays  that  the  complainants  may  be  decreed  to  pay  the 
money  to  the  party  entitled  to  receive  the  same,  or  that  it 
may  be  invested  under  the  order  and  direction  of  the  court. 

The  evidence  in  the  cause  is  that  Canfield,  the  legatee,  re- 
sided at  Hartford,  in  the  state  of  Connecticut,  in  the  years 
1836  and  1837.  That  about  the  close  of  1837,  or  beginning 


120  CASES  IN  CHANCERY. 

Executors  of  Clarke  ».  Canfield. 

of  1838,  lie  removed  lo  Lumberland,  in  the  stale  of  New 
York,  where  he  resided  in  May,  1839.  In  1849,  a  letter 
was  received  from  him,  by  his  father,  dated  on  the  fourteenth 
of  December!  1841),  but  without  signature  and  without  any- 
thing to  indicate  where  it  was  written.  It  was  believed,  from 
the  postmark,  to  have  been  dated  at  East  on,  Pennsylvania, 
though  that  is  not  certain,  as  the  postmark  was  partially  ob- 
literated. Since  1849,  though  repeated  inquiries  have  been 
made  for  him  at  the  place  of  his  last  residence  and  elsewhere, 
nothing  whatever  has  been  heard  from  him. 

It  is  conceded  that  the  evidence  brings  the  case  within  the 
operation  of  the  statute  (Nix.  Dig.  211,  §  4,)  and  that  at  the 
end  of  seven  years  from  the  time  the  legatee  was  last  heard 
from,  there  arises  a  legal  presumption  of  his  death.  But  it 
is  urged,  that  although  at  the  end  of  seven  years  the  law 
presumes  that  the  absent  party  is  dead,  there  is  no  presump- 
tion ic/ien  he  died ;  that  the  law  was  designed  to  furnish  evi- 
dence of  the  fad  of  the  death,  but  not  of  the  time  of  the 
death.  This  view  of  the  operation  of  the  statute  was  adopted 
by  the  Court  of  King's  Bench  and  Exchequer,  in  Doe  v.  Ne- 
pean,  and  appears  to  be  the  settled  doctrine  of  the  English 
courts.  Doe  ex  dem.  Knight  v.  Nepean,  5  Barn.  &  Ad.  96  ; 
Nepean  v.  Doe  ex  d.  Kniglit,  2  Hees.  &  W.  894 ;  In  re  Creed, 
19  Eng.  Law  and  Eq.  19. 

The  same  view  appears  also  to  have  been  adopted  in  some 
of  the  American  decisions.  McCartce  v.  Camel,  1  Barb.  Ch. 
11.  462 ;  Spencer  v.  Roper,  13  Iredell  333. 

In  Doe  v.  Nepean,  the  lessor  of  the  plaintiff  claimed  the 
premises  by  title  accruing  on  the  death  of  Matthew  King, 
who  went  lo  America  in  1807,  and  was  never  afterwards 
heard  from.  The  action  was  brought  within  twenty  years 
from  the  eviration,  but  not  within  twenty  years  from  the 
commencement  of  the  seven  years  absence.  There  was  no 
other  evidence  to  show  at  what  time  the  party  died,  and  it 
was  held  that  the  claim  was  barred  by  the  statute  of  limita- 
tions. As  against  the  plaintiff,  the  absent  party  was  pre- 
sumed to  be  alive  during  the  whole  period  of  seven  years, 


.      OCTOBER  TERM,  1862.  121 

Executors  of  Clarke  v.  Canfield. 

but  no  such  presumption  was  allowed  in  his  favor.  The 
effect  was  that  the  statute  of  limitations  operated  against 
the  plaintiff  within  thirteen  years  after  his  right  of  action 
accrued. 

In  the  present  case  this  view  of  the  statute  must  give  rise 
to  much  more  serious  embarrassment,  and  will  defeat  a  re- 
covery of  the  fund  by  either  party  from  the  impossibility  of 
ascertaining  when  the  legatee  died.  The  child  of  the  special 
legatee,  to  entitle  himself  to  recover,  must  show  that  the 
legatee  survived  the  testatrix,  otherwise  the  legacy  lapsed. 
The  residuary  legatee,  to  establish  her  claim,  must  show  that 
the  special  legatee  died  in  the  lifetime  of  the  testatrix,  for  in 
that  event  alone  is  she  entitled  to  the  fund.  And  no  length 
of  time  will  remove  the  difficulty,  so  that  the  title  to  the  fund 
must  for  ever  remain  unsettled.  Similar  embarrassments,  it 
is  obvious,  will  be  encountered  in  numerous  cases,  in  which 
the  aid  of  the  statute  may  be  invoked.  A  construction  which 
leads  to  such  results  ought  not  to  be  adopted,  except  for  the 
most  cogent  reasons.  It  will  greatly  impair  the  beneficent 
design  of  the  statute,  which  was,  I  apprehend,  to  furnish  a 
legal  presumption  of  the  time  of  the  death,  as  well  as  of  the 
fact  of  the  death.  And  that  design  it  accomplishes  by  the 
fairest  rules  of  interpretation. 

The  legatee  is  proved  to  have  been  living  about  three 
years  before  the  death  of  the  testatrix.  The  legal  presump- 
tion independent  of  the  statute,  is  that  life  continues  until 
the  contrary  is  shown,  or  until  a  different  presumption  is 
raised.  Wilson  v.  Hodges,  2  East  313;  1  GrecnleaJ's  Ev., 
§41. 

In  the  absence  of  the  statute,  the  presumption  would  be 
that  the  legatee  is  still  alive.  The  design  of  the  statute  was, 
by  an  arbitrary  rule,  to  fix  a  definite  limit  to  that  presump- 
tion of  the  continuance  of  life  by  a  contrary  presumption 
that  life  has  ceased.  But  the  presumption  of  life  ceases  only 
when  it  is  overcome  by  the  countervailing  presumption  of 
death.  And  the  real  question  is,  not  whether  the  statute 
furnishes  any  evidence  of  the  precise  time  of  the  death,  but 


122  CASES  IN  CHANCERY. 

Executors  of  Clarke  v.  Canfield. 

whether  it  furnishes  any  evidence  of  the  occurrence  of  death 
before  tlie  end  of  the  seven  years.  If  it  docs  not,  the  pre- 
sumption of  life  continues,  by  well  settled  rules  of  evidence, 
independent  of  the  statute.  The  presumption  of  death  which 
arises  upon  the  expiration  of  the  seven  years  cannot  operate 
retrospectively. 

There  is  an  apparent,  though  not  a  real  exception  to  the 
rule,  that  the  presumption  of  life  continues  in  the  case  of  an 
indictment  for  polygamy  where  the  wife  marries  during  the 
absence  of  the  husband  before  the  expiration  of  seven  years. 
But  there  the  presumption  of  the  continuance  of  life  is  over- 
come by  the  stronger  presumption  of  the  innocence  of  the 
party  accused.  Hex  v.  Twining,  2  Barn.  &  Aid.  386. 

So  there  may  be  circumstances  which  will  create  a  pre- 
sumption in  fact  of  the  death  of  an  absent  party  within 
seven  years.  But  this  in  no  wise  affects  the  legal  presump- 
tion created  by  the  statute,  and  in  the  absence  of  such  cir- 
cumstances the  presumption  of  life  continues  until  arrested 
by  the  statute. 

It  is  no  answer  to  say  that  the  probabilities  are  that  the 
death  did  not  occur  at  the  expiration  of  the  seven  years,  but 
at  some  other  time  within  that  period.  The  time  of  the  death, 
as  well  as  the  fact  of  death,  arc  presumptions  not  of  fact,  but 
of  law.  The  law  regards  neither  as  certain.  It  simply 
declares  that  the  party  shall  be  presumed  to  be  dead  at  the 
expiration  of  the  seven  years,  whenever  his  death  shall  come 
in  question.  The  language  of  the  statute,  as  well  as  that  of 
G  Anne,  di.  18,  and  of  19  Charles  I.,  cJi.  2,  for  which  our 
statute  was  designed  as  a  substitute,  clearly  indicates  that  an 
arbitrary  rule  was  designed  to  be  established  by  which  the 
rights  of  the  parties  litigant  might  be  determined  in  the 
absence  of  more  unequivocal  proof,  however  inconsistent  that 
presumption  might  be  with  the  actual  truth  of  the  case. 

This  view  of  the  effect  of  the  presumption  created  by  the 
statute  is  sustained  by  the  great  weight  of  American  au- 
thority. Burr  v.  Sim,  4  Wliarton  150;  Bradley  v.  Bradley, 
4.  Wharton  173;  IVkitcsidcs'  Appeal,  23  Petm.  St.  R.  114; 


OCTOBER  TERM,  1862. 


123 


Carpenter  v.  Muchmore. 


Smith  v.  Knowlton,  11  New  Hamp.  196;  Nacman  v.  Jenkins, 
10  Pick.  515 ;  Eagle  v.  Emmet,  4  Brad/.  124.  Sec,  also, 
]Fc6sfor  v.  Berchmore,  13  Fese?/  363. 

It  appearing  that  the  special  legatee  was  in  life  about  three 
years  before  the  death  of  the  testatrix,  the  presumption  is  that 
lie  continued  in  life  until  after  the  death  of  the  testatrix,  and 
that  consequently  the  legacy  did  not  lapse.  More  than  seven 
years  having  elapsed  since  the  legatee  was  last  heard  from,  the 
legal  presumption  created  by  the  statute  attaches.  The  lega- 
tee is  now  presumed  to  be  dead,  and  the  next  of  kin  is  enti- 
tled lo  the  fund. 

The  executors  will  be  chargeable  with  interest  only  in  the 
event  of  their  having  used  or  made  profit  out  of  the  fund. 


CHARLES  R.  CARPENTER  vs.  SMITH  MUCHMORE. 

On  a  petition  by  a  defendant  that  a  decree  of  this  court,  in  all  respects 
regular,  be  opened,  and  that  he  be  admitted  to  answer,  alleging  surprise 
and  merits,  it  was  held — 

That  the  general  rule  is  that  a  decree  regularly  entered  and  enrolled  can- 
not be  altered  except  by  bill  of  revivor. 

Great  liberality  has  been  exercised  in  the  opening  and  correcting  of  de- 
crees before  enrollment,  and  even  afterwards  (where  the  decree  has  been 
taken  pro  confesso),  for  the  purpose  of  rectifying  mistakes  apparent  upon 
the  face  of  the  proceedings,  or  where  there  is  a  clear  case  of  surprise 
and  merits. 

When  the  only  allegation  of  surprise  is  that  the  defendant  is  unacquainted 
with  proceedings  in  this  court,  but  in  some  way  got  the  impression  that 
lie  would  have  until  the  first  day  of  the  present  term  to  file  his  answer, 
this  is  not  a  sufficient  case  of  surprise.  It  was  his  duty  to  inquire  as  tr 
his  rights.  If  he  negligently  relied  on  his  mistaken  impression,  he  in- 
curred the  hazard  of  his  default  in  not  answering. 

The  petition,  though  sworn  to,  is  no  evidence  of  the  facts  contained  in  it. 
Its  truth  must  be  established  by  affidavits  and  other  evidence  taken  ac- 
cording to  the  rules  and  practice  of  the  court. 

J.  IL  Boylan,  for  petitioner. 
Titsicorth,  for  complainant. 


124  CASES  IN  CHANCERY. 

Carpenter  r.  Muchmore. 

THE  CHANCELLOR.  The  defendant,  by  petition,  asks  that 
the  decree,  entered  in  this  cause  on  the  twenty-third  of  Au- 
gust last,  be  opened,  and  that  he  be  admitt'jd  to  answer. 
There  is  no  suggestion  that  the  decree  and  the  proceedings 
upon  which  it  is  founded  are  not  in  all  respects  regular. 

The  general  rule  is  that  a  decree  regularly  entered  and  en- 
rolled cannot  be  altered,  except  by  bill  of'revivor.  2  Daniefft 
Ch.  Pr.  1232,  1235,  and  cases  cited  in  note  4;  1  Harbour's 
Ch.  Pr.  366. 

Great  liberality  has  been  exercised  in  the  opening  and  cor- 
recting of  decrees  before  enrollment,  and  even  afterwards, 
where  the  decree  has  been  taken  pro  confesso,  for  the  purpose 
of  rectifying  mistakes  apparent  upon  the  face  of  the  proceed- 
ings, or  where  there  is  a  clear  case  of  surprise  and  merits.  2 
DanieWs  Ch.  Pi:  1235;  1  Harbour's  Ch.  Pr.  367. 

The  ground  of  complaint  is  that  the  mortgage  was  origi- 
nally given  for  a  larger  amount  than  was  actually  due,  not 
by  mistake  but  by  design.  The  alleged  fact  must  have  been 
known  to  the  defendant  at  and  before  the  time  when  the  bill 
was  filed.  The  subpoena  was  regularly  served,  returnable  on 
the  18th  of  June  last;  the  decree  was  signal  on  the  23d  of 
August.  The  only  allegation  of  surprise  is,  that  "the  de- 
fendant is  entirely  unacquainted  with  proceedings  in  this 
court,  but  in  some  way  got  the  impression  that  he  would 
have  until  the  first  day  of  the  present  term  to  file  his  an- 
swer." How  and  when  he  got  that  impression  is  not  stated. 
It  certainly  was  not  from  the  subpoena.  That  required  him 
to  appear  on  the  18th  of  June.  The  time  limited  by  law  for 
answering  expired  before  the  23d  of  August,  when  the  de- 
cree was  signed.  It  was  his  duty  to  inquire  as  to  his  rights. 
If  he  negligently  relied  upon  his  mistaken  impressions,  he 
incurred  the  hazard  of  his  default  in  not  answering.  Almost 
every  defendant  against  whom  legal  proceedings  are  insti- 
tuted might  intcrjjose  the  same  excuse  for  his  laches.  It 
constitutes  no  surprise,  in  the  legal  sense  of  the  term.  It  is 
a  clear  case  of  neglect  on  the  part  of  the  defendant  to  file 


OCTOBER  TERM,  1862.  .      125 

Carpenter  v.  Muchmore. 

his  answer,  according  to  the  requirement  of  the  statute,  after 
he  has  been  regularly  subpoenaed. 

Nor  has  the  petitioner  exercised  due  diligence  in  making 
his  application  to  open  the  decree.  The  petitioner  alleges 
that,  a  short  time  before  the  commencement  of  the  present 
term,  he  applied  to  a  solicitor  to  draw  his  answer,  and  while 
the  answer  was  being  prepared,  learned,  for  the  first  time, 
that  the  decree  had  been  made.  How  long  before  the  com- 
mencement of  the  term  he  employed  a  solicitor,  or  learned 
that  the  decree  was  made,  is  not  stated.  It  may  have  been 
a  week  or  a  month.  No  application  was  made  to  open  the 
decree  until  the  sixth  of  November,  the  day  tefore  that  upon 
which  the  property  was  advertised  to  be  sold. 

Upon  the  merits  of  the  case,  as  made  by  the  evidence,  the 
petitioner  is  not  entitled  to  relief.  The  only  witness  in  sup- 
port of  the  petition  is  Morehouse.  He  testifies  that  the  bond 
and  mortgage  in  question  were  given  at  the  instance  of 
Johnston,  the  mortgagee,  for  a  much  greater  sum  than  was 
really  due  to  him,  and  that  there  was  not  due  to  Johnston, 
on  said  bond  and  mortgage,  at  the  time  the  same  were 
given,  or  at  any  time  since,  a  sum  exceeding  four  hundred 
dollars.  This  affidavit  was  made  on  the  22d  of  November, 
instant.  On  the  12th  of  November,  only  ten  days  previously, 
Morehouse  was  examined  under  oath,  by  order  of  a  judge  of 
the  Essex  Circuit  Court,  under  the  act  to  prevent  fraudulent 
transfers  and  assignments.  He  then  testified,  in  answer  to 
a  direct  inquiry,  that  he  did  not  know  anything  about  the 
amount  due  to  Johnston  on  the  mortgage  given  to  him  by 
Muchmore.  Whether  the  first  or  last  affidavit  contains  the 
truth,  it  is  impossible  to  determine.  It  is  obvious  that  no 
dependence  can  be  placed  upon  the  testimony  of  the  witness. 

The  petition  of  Muchmore,  though  sworn  to,  is  no  evi- 
dence of  the  facts  contained  in  it.  Its  truth  must  be  estab- 
Jished  by  affidavits  and  other  evidence,  taken  according  to 
the  rules  and  practice  of  the  court.  Coxe  v.  Halsted,  1 
Green's  Ch.  R.  311  j  Crane  v.  Brigham,  3  Slockt.  33. 

There  is  no  evidence  sufficient  to  impeach  the  bona  fide* 

VOL.  ii.  H 


12G  CASES  IN  CHANCERY. 

Waldron  v.  Letson. 

of  the  mortgage  or  the  amount  of  the  indebtedness  as  estab- 
lished by  the  decree. 

The  application  must  be  denied,  and  the  rule  to  show  cause 
discharged  with  costs. 

CITED  in  Brinkerho/  v.  Franklin,  6  C.  E.  Or.  336;  Dinsmore  v.  WestcoU, 
10  C.  E.  Or.  30o. 


WILLIAM  WALDRON  vs.  THOMAS  W.  LETSON. 

When  a  parcel  of  land  is  sold  under  a  decree  of  foreclosure,  and  is  struck 
off  and  conveyed  to  the  purchaser  under  an  erroneous  impression  that 
the  mortgage  covers  the  entire  tract,  the  price  for  the  entire  tract  being 
bid  and  paid,  and  the  purchaser  put  into  possession,  and  it  is  afterward 
discovered  that,  from  a  mistake  in  the  description,  the.  mortgage  does  not 
cover  the  entire  premises  intended  to  be  mortgaged,  by  reason  whereof 
the  legal  title  fails,  the  purchaser  is  entitled  to  be  protected  in  the  peace- 
able possession  of  the  land  purchased. 

Had  an  application  been  made  on  behalf  of  the  mortgagee  to  reform  the 
mortgage  prior  to  the  date  of  foreclosure  there  could  have  been  no  doubt 
of  his  equitable  title  to  relief.  And  if  a  mistake  in  a  mortgage  may 
be  corrected  it  is  just  and  equitable  that  the  mortgagor  should  abstain 
from  availing  himself  of  the  mistake  to  the  prejudice  of  the  purchaser. 

It  is  not  gross  carelessness  in  a  purchaser  at  a  sheriff's  sale  not  to  know 
that  the  description  in  a  sheriff's  deed  does  not  include  the  entire  premises 
which  are  understood  to  be  offered  for  sale. 

In  this  case  the  devisee  of  the  mortgagor  was  restrained  from  proceeding 
by  ejectment  to  recover  the  possession  of  that  part  of  the  premises  acci- 
dentally omitted  from  the  mortgage,  and  was  decreed  to  release  the  same 
to  the  purchaser. 

H.  V.  Speer,  for  complainant. 
R.  Adrain,  for  defendant. 

THE  CHANCELLOR.  In  the  year  1819,  Thomas  Letson  was 
seized  and  possessed  of  a  lot  of  land  and  premises,  at  the 
corner  of  Albany  and  Spring  streets,  in  the  city  of  New 
Brunswick,  known  as  the  lanyard  lot.  To  the  entire  front 
of  the  lot  on  Albany  street,  and  to  about  one  hundred  and 
nineteen  feet  of  the  front  on  Spring  street,  he  claimed  title 
by  two  deeds ;  the  first  from  the  trustees  of  Freeman,  dated 
in  1813,  for  that  part  of  the  premises  which  composed  the 


OCTOBER  TERM,  .1862.  127 


Waldron  v.  Letson. 


original  tanyard  lot,  and  the  second  from  Philip  Oakey, 
dated  in  1822.  In  1819  the  original  tanyard  lot  was  enlarged 
by  the  addition  of  thirty  feet  on  Spring  street,  or  Spring 
alley,  taken  from  the  north,  or  rear  end  of  two  lots  owned 
by  Letson,  fronting  south  on  Church  street.  In  1828  the 
tanyard  lot  was  further  enlarged,  by  additions  from  the 
north,  or  rear  end  of  other  lots  on  Church  street,  owned  by 
Letson.  Being  thus  seized,  on  the  twenty-fifth  of  January, 
.1851,  Thomas  Letson  executed  to  his  son,  John  S.  Letson,  a 
mortgage  to  secure  the  payment  of  $6000  "  on  all  that  cer- 
tain lot  of  land,  with  the  erections  thereon,"  situate  on  the 
southerly  side  of  Albany  street,  describing  the  land  by 
metes  and  bounds,  included  in  the  two  deeds  from  the  trus- 
tees of  Freeman  and  from  Oakey,  but  not  including  the  addi- 
tions subsequently  made  to  the  premises  from  the  rear  of  the 
Church  street  lots.  On  the  fourth  of  February,  1859,  upon 
a  bill  filed  by  William  Dunham,  an  assignee  of  the  said 
mortgage,  a  decree  was  made  for  the  foreclosure  and  sale  of 
said  mortgaged  premises.  On  the  thirteenth  of  July,  1859, 
the  premises  were  sold,  by  virtue  of  an  execution  issued  upon 
the  said  decree,  by  the  sheriff  of  Middlesex  to  William  WTal- 
dron,  who  became  the  purchaser  for  $5530.  On  the  twenty- 
seventh  of  July  a  deed,  in  pursuance  of  the  sale,  was  executed 
to  the  purchaser.  At  the  time  of  the  sale,  and  for  many 
years  previous,  the  additions  made  from  the  Church  street 
lots  had  been  enclosed  and  used  with  the  tanyard  lot,  as  a 
part  of  the  same  premises.  They  were  so  at  the  time  of  the 
sale.  Thirty  feet  of  the  principal  building  on  the  premises 
then  stood  on  the f  ground  taken  from  the  Church  street  lots 
not  included  within  the  description  of  the  mortgage.  The 
property,  when  offered  for  sale  under  execution,  was  spoken 
of  by  the  sheriff  as  the  tanyard  property,  though  no  descrip- 
tion of  it  was  given  by  him  variant  from  that  contained  in 
the  execution.  The  purchaser  took  possession  of  the  whole 
premises  enclosed  and  known  as  the  tanyard  lot,  and  has 
expended  $500  in  repairs  of  the  building  on  the  premises. 
On  the  thirty-first  of  May,  1861,  Thomas  W.  Letson,  a  son 


128  CASES  IN  CHANCERY. 

Waldron  v.  Letson. 

of  the  mortgagor,  who  claims  title  to  the  premises  by  devise 
of  his  father,  commenced  an  action  of  ejectment  for  the 
recovery  of  the  thirty  feet  on  Spring  street  upon  which  the 
grist  mill  stands.  The  bill  in  this  cause  was  thereupon  filed, 
claiming  that  the  mortgage,  execution,  and  sheriff's  sale  were 
intended  to  cover  and  convey  the  entire  lot,  with  the  build- 
iugs  thereon,  praying  that  the  sheriff 's  deed  might  be  reformed 
and  rectified  by  inserting  sixty-three,  instead  of  thirty-three 
feet,  as  the  length  of  one  of  the  lines  on  Spring  street,  so  as 
to  include  the  premises  in  dispute,  and  that  the  plaintiff  in 
ejectment  might  be  restrained  from  further  prosecuting  his 
action. 

It  is  satisfactorily  shown,  by  the  evidence,  that  the  mort- 
gage was  originally  understood  and  designed  to  include  the 
premises  in  dispute.  As  early  as  1819,  the  thirty  feet  on 
Spring  street  was  added  to  and  made  parcel  of  the  tanyard, 
a  bark-shed  being  erected  thereon,  and  forming  the  south 
line  of  the  lot.  Since  that  time  it  has  been  used  and  occu- 
pied as  part  of  the  tanyard  lot,  and  lain  within  the  same 
enclosure.  In  1822,  Thomas  Letsou,  the  mortgagor,  sold 
and  conveyed  the  adjoining  lot  on  Church  street  up  to  the 
bark-shed.  The  boundaries  of  the  tanyard,  so  far  as  the 
present  controversy  is  concerned,  continued  unchanged  from 
the  year  1819  to  the  present  time.  In  1839  the  mortgagor, 
by  will  of  that  date,  devised  the  premises  to  his  son,  Thomas 
"W.  Letson,  by  the  following  description  :  "The  tanyard  lot 
and  buildings,  including  all  the  laud  on  Spring  alley  to  lot 
of  John  S.  Letson  in  Albany  street."  Under  this  devise  the 
defendant  claims  title  to  the  premises  in  dispute,  and  they 
are  undoubtedly  included  in  the  description.  On  the  twelfth 
of  May,  1848,  articles  of  agreement  were  entered  into  between 
Thomas  Letson  and  his  son,  Thomas  W.  Letson,  by  which 
the  premises  were  leased  to  the  son  for  a  term  of  years,  in 
and  by  which  instrument  it  was  agreed,  among  other  things, 
that  the  lessor,  Thomas  Letson,  should  erect  a  substantial 
brick  building  on  said  lot  for  manufacturing  purposes  for  the 
benefit  of  the  lessee.  The  agreement  recites  that  "  Thomas 


OCTOBER  TERM,  1862.  129 

Waldron  v.  Letson.  , 

Letson  is  seized  and  possessed  of  a  certain  lot  and  premises, 
with  the  buildings  thereon,  situate  at  the  corner  of  Spring 
alley  and  Albany  street,  in  New  Brunswick,  and  by  his  said 
last  will  and  testament  hath  devised  the  said  lot  of  land  and 
premises  unto  the  said  Thomas  W.  Letson."  A  brick  build- 
ing was  thereafter  erected  on  the  premises,  fronting  on  Spring 
alley  seventy  feet,  by  forty  feet  in  depth.  The  south  end  of 
the  building  corresponded  with  the  south  line  of  the  tan- 
yard  lot,  as  previously  used,  so  that  thirty  feet  of  its  length 
on  Spring  street  stood  upon  the  ground  added  to  the  original 
tanyard  from  the  rear  of  the  Church  street  lots.  The  pre- 
mises were  in  this  situation  on  the  twenty-fifth  of  January, 
1851,  when  the  mortgage  in  question  was  given  by  Thomas 
Letson  to  his  son,  John  S.  Letson.  The  mortgagee  testifies 
that  the  mortgage  was  understood  by  him  to  cover  the  whole 
lot,  and  he  believes  it  was  so  understood  and  intended  by  the 
mortgagor.  The  counsel  of  the  mortgagor,  by  whom  the 
mortgage  was  drawn,  and  who  also  drew  the  will  of  the 
mortgagor  and  the  lease  from  him  to  his  son  Thomas,  states 
that  he  was  instructed  by  the  mortgagor  to  prepare  the  mort- 
gage upon  the  share  of  his  real  estate  which  he  had  devised 
to  his  son,  Thomas  W.  Letson,  assigning  particularly  his  rea- 
sons for  placing  the  mortgage  upon  that  property,  and  that 
tlie  mortgage  was  intended  to  embrace  this  property.  The 
written  instruction  to  counsel,  or  the  statement  of  the  mort- 
gagor's wishes,  written  two  days  before  the  date  of  the  mort- 
gage, is  produced,  in  which  the  mortgagor  states  that,  as 
many  changes  have  taken  place  since  his  will  was  executed, 
he  desires  some  alteration  respecting  that  portion  given  to 
Thomas  W.  Letson  ;  "  that  he  has  placed  in  cash  $6000,  which 
he  wished  to  be  secured  by  bond  and  mortgage  in  favor  of 
John  S.  Letson  on  the  mill  and  tanyard  property"  The 
"mill"  upon  which  the  mortgage  was  to  be  given  was  the 
brick  building,  thirty  feet  of  which  stands  outside  of  the  lot 
described  in  the  mortgage.  The  mortgage  was  given,  in  part 
:it  least,  as  security  for  money  advanced  in  the  construction 
of  that  building ;  and  yet  the  description  of  the  premises 


130  CASES  IN  CHANCERY. 

Waldron  v.  Letson. 

contained  in  the  mortgage  runs  nearly  through  the  centre  of 
the  building,  utterly  destroying  its  value  for  all  the  purposes 
for  which  it  was  intended  and  used,  and  greatly  impairing 
the  security  of  the  mortgage.  It  is  incredible  that  such 
should  have  been  the  intention  either  of  the  mortgagor  or 
mortgagee.  By  an  agreement,  entered  into  on  the  twenty- 
second  of  February,  1851,  by  the  mortgagor  with  his  son, 
John  S.  Letson,  it  is  recited  that  the  mortgagor  had  agreed 
with  his  son,  Thomas  W.  Letson,  to  erect  a  brick  building  on 
the  lot  at  the  corner  of  Spring  alley  and  Albany  street,  at  a 
cost  of  $2000;  that  the  building  had  been  erected  at  the  cost 
of  about  $4000,  and  that  he  had  executed  a  bond  and  mort- 
gage on  said  premises  to  secure  John  S.  Letson,  &c. 

The  evidence  renders  it  certain  that  the  mortgage  was  un- 
derstood and  intended  by  both  parties  to  cover  the  premises 
in  dispute.  The  mistake  arose  from  adhering,  in  the  descrip- 
tion, to  the  boundaries  of  the  property  as  originally  purchased, 
without  adverting  to  the  additions  made  from  time  to  time 
to  the  rear  of  the  lot  from  portions  of  other  lots  owned  by 
the  mortgagor.  It  was  understood  that  the  mortgage  included 
the  premises  in  dispute  during  the  life  of  the  mortgagor, 
after  his  death,  and  at  the  time  of  the  foreclosure  and  sale 
by  the  sheriff.  The  purchaser  entered  into  possession  of  the 
entire  premises,  as  they  had  been  held,  used,  and  occupied  by 
all  the  parties  for  over  thirty  years.  Thomas  W.  Letson,  by 
his  answer,  admits  that  at  the  time  of  the  sale  he  was  not 
aware  that  the  mortgage  did  not  include  all  the  premises  de- 
vised to  him,  as  they  then  existed,  or  that  he  had  any  claim 
to  any  part  thereof  by  reason  of  its  not  being  covered  by  the 
mortgage,  and  he  excuses  himself  on  this  ground  for  not 
stating  his  claim  at  the  time  of  the  side. 

Had  an  application  been  made  on  behalf  of  the  mortgagee 
to  reform  the  mortgage  prior  to  the  decree  of  foreclosure 
there  could  have  been  no  doubt  of  his  equitable  title  to  relief. 
There  is  no  more  familiar  or  salutary  exercise  of  the  power 
of  a  court  of  equity  to  relieve  against  mistakes  in  written 
instruments  than  that  of  correcting  mistakes  in  the  descrip- 


OCTOBER  TERM,  1862.  131 

Waldron  v.  Letson. 

tion  of  the  boundaries  of  lands  conveyed  or  mortgaged.  It 
is  equally  clear  that  if  the  purchaser  at  the  sheriff's  sale  had 
discovered  the  mistake  before  the  delivery  of  the  deed  and 
the  payment  of  the  purchase  money,  he  would  have  been 
relieved  from  the  obligation  of  his  bid  on  the  ground  that 
the  bid  was  made  under  a  mistake. 

The  real  question  in  the  cause  is  whether  the  party  is  en- 
titled to  relief  in  the  situation  in  which  he  now  stands,  and 
if  to  any,  what  that  relief  should  be.  Can  the  alleged  mis- 
take be  rectified  ? 

There  is  no  mistake  in  the  sheriff's  deed.  There  is  no  va- 
riance or  discrepancy  between  the  description  of  the  premises 
in  the  deed  and  in  the  execution.  The  sheriff  has  conveyed 
all  that  he  was  commanded  or  authorized  to  sell  and  all  that 
he  advertised  for  sale. 

Nor  is  there  any  mistake  in  the  proceedings  in  chancery 
under  which  the  sale  was  made.  The  bill  of  complaint  de- 
scribes the  property  as  it  is  described  in  the  mortgage.  The 
execution  follows,  as  it  must  necessarily  do,  the  description 
in  the  bilL  The  premises  conveyed  by  the  sheriff  were  the 
same  as  those  described  in  the  bill,  execution,  and  advertise- 
ments of  sale,  and  were  the  only  premises  of  which  a  sale 
could  have  been  decreed  under  the  bill  filed  in  the  cause. 
There  is,  then,  no  mistake  in  the  proceedings  which  can  be 
corrected.  The  mistake  exists,  not  in  the  proceedings  for 
foreclosure,  but  in  the  original  mortgage  upon  which  those 
proceedings  are  based.  The  correction,  if  anywhere,  is  to  be 
made  there  where  the  error  originated.  But  the  time  has 
passed  for  correcting  either  the  mortgage  or  the  proceedings 
under  it'.  The  mortgage  has  been  extinguished,  or  the  rights 
of  the  mortgagor  under  it  determined  by  the  decree.  The 
decree  has  been  executed.  The  rights  acquired  under  it  are 
vested.  I  am  clear  that  the  specific  relief  prayed  for  cannot 
be  granted. 

Is  the  complainant  without  remedy  ? 

The  complainant  claims  to  be  protected  in  the  possession 
and  enjoyment  of  the  premises  for  which  he  bid  at  the  sheriff's 


132  CASES  IN  CHANCERY. 

Waldron  v.  Letson. 

sale  and  for  which  he  paid  the  purchase  money.  They  are 
the  same  premises  which  it  was  understood  and  believed,  by 
persons  present  at  the  sale,  were  being  sold.  They  are  the 
same  premises  which  the  mortgagor  agreed  to  mortgage,  and 
>vhich  the  mortgagee  accepted  as  security  for  the  mortgage 
debt.  The  mortgagee  has  received  the  price  of  the  whole 
lot  in  satisfaction  of  the  mortgage  debt.  The  mortgagor 
has  been  relieved  of  his  indebtedness  to  the  extent  of  the 
price  of  the  whole  lot.  The  parties  now  stand,  in  the  full 
enjoyment  of  all  their  rights,  precisely  as  they  would  have 
done"  liad  the  mortgage  been  drawn,  and  the  sale  and  convey- 
ance made  according  to  the  intention  and  understanding  of 
the  parties.  The  complainant  would  seem  to  present  a  very 
strong  claim  to  be  protected  in  the  quiet  enjoyment  of  the 
premises,  as  against  the  mortgagor  and  his  devisee.  Having 
had  the  price  of  the  entire  lot  applied  to  the  extinguishment 
of  the  mortgage  debt,  he  can  have  no  equitable  title,  as 
against  the  purchaser,  to  any  portion  of  the  lot. 

I  proceed  upon  the  assumption,  which  is  fully  justified  by 
the  evidence,  that  it  was  understood  not  only  by  the  pur- 
chaser, but  by  the  bidders  and  persons  generally  at  the  sale, 
that  the  entire  lot  was  being  sold,  and  that  the  price  for  which 
it  was  struck  off  was  the  price  for  which  the  entire  lot  would 
have  sold.  If  it  were  otherwise  the  rights  of  the  mortgagee 
would  have  been  prejudiced,  and  he,  and  not  the  purchaser, 
would  have  been  entitled  to  equitable  relief. 

It  was  suggested,  upon  the  argument,  that  the  whole  diffi- 
culty originated  in  the  neglect  of  the  purchaser  in  not  exam- 
ining the  description  in  the  sheriff's  advertisements,  and  that 
a  party  will  not  be  relieved  against  the  consequences  of  his 
own  gross  carelessness.  But  is  it  gross  carelessness  in  the 
purchaser  at  a  sheriff's  sale  not  to  know  that  the  description 
in  the  sheriff's  deed  does  not  include  the  entire  premises 
which  are  understood  to  be  offered  for  sale  ? 

Undoubtedly  the  purchaser  is  bound  to  use  reasonable 
diligence  in  ascertaining  what  the  property  is  for  which  he  is 
bidding  at  a  public  sale.  But  suppose  he  examines  the  de- 


OCTOBER  TERM,  1862.  133 

Waldron  v.  Letson. 

scription  in  the  advertisement,  how  shall  he  know,  except  by 
an  actual  survey,  that  the  description  does  embrace  the  entire 
premises  which  are  offered  for  sale?  He  may  ascertain 
whether  the  description  corresponds  with  the  description  in 
the  execution ;  but  how  shall  he  know  whether  the  execution 
follows  the  mortgage,  or  whether  there  are  misdescriptious  in 
the  mortgage,  or  whether  it  covers  the  entire  premises  designed 
to  be  mortgaged  ? 

Under  a  sale  by  execution  at  common  law  of  a  house  and 
lot  or  of  a  farm,  how  is  the  purchaser  to  ascertain  whether 
the  description  in  the  sheriff's  deed  includes  the  whole  premi- 
ses? In  the  present  case  it  is  obvious  that  the  discrepancy 
between  the  description  in  the  advertisement,  and  the  visible 
boundaries  of  the  lot,  as  offered  for  sale,  could  only  have  been 
ascertained  by  actual  measurement. 

The  objections  to  granting  relief  to  the  purchaser  are  en- 
tirely of  a  technical  character.  The  question  arises  between 
the  devisee  of  the  mortgagor  and  the  purchaser  under  the 
sheriff's  sale.  There  are  no  intervening  equities  to  be  affected 
by  the  decree.  The  mortgagee  is  a  party  to  the  bill,  and 
admits  the  complainant's  equity.  The  rights  of  persons  in- 
terested, if  there  be  such  who  are  not  parties  to  the  bill,  can- 
not be  prejudiced  by  the  decree.  There  is  no  necessity  for 
an  amendment  either  in  the  mortgage  or  the  sheriff's  deed. 
The  ground  of  relief  is,  that  it  is  equitable  that  the  complain- 
ant should  be  quieted  in  the  enjoyment  of  the  premises  in 
dispute.  All  that  is  required  is  that  the  defendant,  the  devi- 
see of  the  mortgagor,  should  be  restrained  from  proceeding  at 
law,  and  should  be  decreed  to  release  his  title  in  the  premises 
to  the  complainant. 

The  form  of  relief  was  administered  by  Chancellor  Kent, 
in  the  case  of  a  sheriff's  sale  under  an  execution  at  common 
law,  where  a  mistake,. as  to  the  extent  of  the  premises,  wras 
made  in  the  sheriff's  deed,  under  circumstances  very  similar 
to  those  which  exist  in  the  present  case.  De  Riemer  v.  Can- 
iitton,  4  Johns.  Ch.  E.  85. 

There  is,  it  must  be  admitted,  this  distinction  between  the 


134  CASES  IN  CHANCERY. 

Waldron  v.  Letson. 

cases.  In  that  case  the  mistake  existed  only  in  the  sheriff's 
deed.  The  sale  was  made  in  pursuance  of  power  vested  in 
the  sheriff,  and  in  accordance  with  the  terms  of  his  advertise- 
ment. Here  the  mistake  originated  in  the  mortgage.  There 
was  no  mistake  in  the  sheriff's  deed.  And  the  complainant  is 
asking  to  be  protected  in  the  enjoyment  of  property  for  which 
the  sheriff  neither  did  nor  could  convey  a  legal  title.  But 
that  circumstance,  while  it  increases  the  apparent  difficulty  of 
administering  relief,  does  not  affect  the  substantial  equity  of 
the  case. 

There  is  in  this  case  a  further  ground  of  equity,  viz.  that 
the  defendant  stood  by  and  permitted  the  property  to  be  sold, 
and  the  purchaser  to  make  improvements  on  the  premises, 
without  making  known  his  title.  But  I  am  not  disposed  to 
rest  the  case  at  all  upon  that  ground.  I  rest  it  upon  the 
broad  principle,  that  where  a  parcel  of  land  is  sold  under  a 
decree  of  foreclosure,  and  is  struck  off  and  conveyed  to  the 
purchaser  under  an  erroneous  impression  that  the  mortgage 
covers  the  entire  tract,  the  price  as  for  the  entire  tract  being 
bid  and  paid,  and  the  purchaser  put  into  possession,  and  it  is 
afterward  discovered  that,  from  a  mistake  in  the  description, 
the  mortgage  does  not  cover  the  entire  premises  intended  to 
be  mortgaged,  by  reason  whereof  the  legal  title  fails,  the  pur- 
chaser is  entitled  to  be  protected  in  the  peaceable  possession 
of  the  land  purchased.  If  the  mistake  in  a  mortgage  may 
be  corrected,  it  is  jnst  and  equitable  that  the  mortgagor  should 
abstain  from  availing  himself  of  the  mistake  to  the  prejudice 
of  the  purchaser. 

I  think  the  defendant  should  be  perpetually  enjoined  from 
proceeding  at  law,  and  be  decreed  to  release  his  right  and 
title  in  the  premises  to  the  complainant;  the  form  of  release, 
if  counsel  cannot  agree  in  regard  to  its  terms,  to  be  approved 
by  one  of  the  special  masters  of  the  court. 

The  decree  to  be  made  without  costs  to  either  party,  as 
against  the  other. 

CITED  in  Loss  v.  Obry,  7  C.  E.  Gr.  55 ;  Gatei  EJra  v.  Morris,  2  Slew.  226 ; 
Zingsen  v.  Kidd,  2  Stew.  524. 


OCTOBER  TERM,  1862.  135 

Whitehead's  Ex'rs  v.  First  Methodist  Protestant  Church  of  Newark. 


ASA  WHITEHEAD'S  EXECUTORS  vs.  THE  FIRST  METHODIST 
PROTESTANT  CHURCH  OF  NEWARK  and  others. 

In  a  bill  for  the  forclosure  of  a  mortgage,  in  which  a  question  arose  be- 
tween the  complainants,  whose  mortgage  was  given  before  the  erection  of 
a  building  on  the  land,  and  certain  lienholders,  who  had  liens  for  the 
erection  of  the  building,  as  to  the  proportions  in  which  they  were  re- 
spectively entitled  to  share  in  the  proceeds  of  sale  which  were  insufficient 
to  satisfy  all  the  claims,  it  was  held  that  the  only  safe  mode  of  determin- 
ing the  relative  claims  of 'the  respective  parties  will  be  for  the  master  to 
ascertain  the  f;tir  market  value  of  the  lot  and  building,  and  also  of  the 
value  of  the  lot,  as  it  stood  at  the  time  of  the  mortgage,  clear  of  the 
building,  both  valuations  having  relation,  as  near  as  may  be,  to  the  time 
of  sule. 

The  mode  of  estimating  the  relative  values  of  the  land  and  building  in 
Whitenack  v.  Noe,  3  Stockton  330,  and  in  Newark  Lime  and  Cement  Co. 
v.  Morrison,  2  Beasley  136,  criticised  and  disapproved. 


Zabriskie,  for  complainants. 
Keasbey,  for  the  lienholders. 

THE  CHANCELLOR.  The  bill  is  filed  to  foreclose  a  mort- 
gage, given  by  the  First  Methodist  Protestnnt  Church  of 
Newark  to  the  complainants'  testator,  upon  a  lot  of  land 
fronting  seventy  feet  on  the  south  side  of  Hill  street,  in 
the  city  of  Newark,  to  secure  the  payment  of  six  thousand 
dollars. 

The  mortgage  bears  date  on  the  twentieth  day  of  July, 
1859,  and  was  given  to  secure  the  purchase  money  of  said  lot 
in  one  year  from  date  with  interest.  The  mortgagors  cove- 
nanted to  keep  the  building  to  be  erected  upon  the  premises 
insured  against  loss  by  fire  in  at  least  the  sum  of  $4000,  and 
to  assign  the  policy  of  insurance  to  the  mortgagee  as  collateral 
security  for  the  payment  of  the  debt.  The  mortgage  was 
recorded  on  the  twenty-seventh  of  July,  1859.  After  the 
date  of  the  complainants'  mortgage  the  mortgagors  erected 
a  church  edifice  upon  the  lot.  Ezra  Reeve,  one  of  the  defend- 
ants, filed  a  lien  upon  the  building  and  lot  for  carpenter  work 


136  CASES  IN  CHANCERY. 

Whitehead's  Ex'rs  v.  First  Methodist  Protestant  Church  of  Newark. 

and  materials,  upon  which,  on  the  twelfth  of  April,  1862,  he 
recovered  judgment  to  the  amount  of  $4845.84  besides  costs. 
Jonas  C.  Reeve,  another  of  the  defendants,  filed  a  lien  for 
mason  work  and  materials,  upon  which,  on  the  twelfth  of 
April,  1862,  he  recovered  judgment  for  $2508.95  besides  costs. 

There  i.s  no  question  as  to  the  validity  and  order  of  priority 
of  the  respective  encumbrances. 

It  is  admitted  that  the  mortgage  was  given  and  recorded 
before  the  commencement  of  the  building;  that  the  mortgage 
is  the  prior  encumbrance  on  the  land,  and  the  liens  the  prior 
encumbrance  on  the  building. 

The  only  question  is,  how  is  the  relative  value  of  the  build- 
ing and  the  land  to  be  ascertained. 

The  complainants  insist  that  the  master  shall  ascertain  the 
present  value  of  the  lot,  were  there  no  building  upon  it,  not 
at  a  forced  or  public  sale,  but  at  its  fair  market  value,  to  a 
person  able  and  willing  to  hold  it  till  he  can  realize  its  true 
value,  and  that  the  sum  so  ascertained  shall  be  first  paid  to 
the  mortgagee  out  of  the  proceeds  of  the  sale. 
,  The  defendants  insist  that  the  true  mode  is  to  ascertain, 
as  near  as  may  be,  the  price  which  the  building  alone, 
and  the  building  and  the  lot  together,  will  respectively 
bring  at  sheriff's  sale,  and  the  relative  value  of  the  two  will 
fix  the  proportion  of  the  proceeds  of  the  sale  to  which  the 
parties  are  respectively  entitled. 

It  is  clear  that  the  value  of  the  building  and  lot  should  be 
ascertained  by  the  same  standard,  and  that  value  should  have 
relation,  as  near  as  may  be,  to  the  time  of  the  sale. 

The  true  measure  of  equity  unquestionably  would  be  to 
give  to  the  mortgagee  the  value  of  the  lot  clear  of  the  encum- 
brance of  the  building,  and  to  the  lienholder  the  enhanced 
value  which  his  labor  and  materials  have  given  to  the  lot.  The 
mortgagee  cannot  in  equity  claim  that  he  shall  be  benefited 
by  the  work  and  labor  of  the  mechanic  or  materialman,  but 
he  has  a  strong  claim  in  justice  and  equity  to  insist  that  he 
shall  not  be  injured  by  the  operation  of  their  claims.  On  the 
other  hand,  the  materialman  has  a  right  to  insist  that  the  loss 


OCTOBER  TERM,  1862.  137 

Whitehead's  Ex'rs  v.  First  Methodist  Protestant  Church  of  Newark. 

incurred  by  the  mortgagee  by  a  forced  sale,  or  by  a  depreci- 
ation in  value  of  property  at  the  time  of  the  sale,  shall  not 
be  thrown  upon  him.  Each  claimant  should  bear  his  pro- 
portionate share  of  loss  resulting  from  a  sale  below  the  real 
value  of  the  property.  That  is  a  loss  to  which  every  mort- 
gagee is  exposed,  and  which  is  in  no  wise  affected  by  the  build- 
ing. It  is  a  loss  in  which  both  parties  necessarily  share  in 
proportion  to  the  amount  of  their  respective  claims.  These 
positions  seem  to  be  self-evident  truths.  The  object  of  the 
court  has  been  in  all  cases  to  reach  this  result,  though  I  think 
it  clear  that  in  several  cases  erroneous  methods  of  attaining 
it  have  been  adopted.  Thus  in  Whitenack  v.  Noe,  3  Stockt. 
330,  the  Chancellor  thought  it  would  be  just  for  the  master 
to  ascertain  the  original  cost  of  the  improvements  by  means 
of  the  bill  of  particulars  furnished  with  the  records  of  the 
liens,  and  then  make  a  proper  deduction  for  depreciation  to 
the  time  of  sale.  And  in  The  Newark  Lime  and  Cement  Co. 
v.  Morrison,  2  Beasley  136,  the  value  was  authorized  to  be 
ascertained  in  the  same  mode  or  in  such  other  mode  as  the 
parties  might  agree  upon.  Now  it  is  obvious  that  although 
a  referents  to  the  actual  cost  of  the  labor  and  materials  may 
be  used  as  an  aid  in  estimating  the  value,  it  can  rarely  serve 
as  a  standard  by  which  to  ascertain  the  real  addition  which 
the  building  has  made  to  the  market  value  of  the  property. 
The  building  may  be  so  injudiciously  located,  or  defectively 
constructed,  or  so  unfit  for  the  purpose  for  which  it  was  de- 
signed, as  to  add  comparatively  but  little  to  the  real  value  of 
the  land  or  to  the  price  which  it  will  command  in  the  market. 
The  real  value  of  a  building  may  bear  no  relation  to  its  actual 
cost.  To  adopt  this  estimate  of  value  necessarily  subjects  the 
mortgagee  to  the  hazards  of  all  the  consequences  resulting 
from  the  want  of  judgment  of  the  owner  and  the  ignorance 
and  dishonesty  of  the  mechanics  and  materialmen. 

By  this  process  the  security  of  the  mortgagee  may  be  greatly 
deteriorated.  Thus,  supposing  this  church  to  have  cost 
$18,000,  the  original  cost  of  the  lot  being  $6000;  now  if  the 
value  of  the  lot  and  building  together  is  but  $12;000;  sup- 


138  CASES  IN  CHANCERY. 

Cummins  v.  Cummins. 

posing  real  estate  to  have  undergone  no  charge  in  value,  and 
the  lot  to  be  still  worth,  independent  of  the  building,  $6000 
the  mortgagee  will  have  lost  just  half  of  his  debt,  while  the 
copiplainants  will  be  paid  the  principal  of  their  liens  nearly 
in  full.  If  the  diminution  in  the  value  of  the  security  results 
from  depreciation  of  value  or  a  forced  sale  it  may  justly  fall 
on  the  mortgagee,  but  if,  from  an  injudicious  investment  in 
the  building,  the  mortgagee  should  not  be  prejudiced  by  it. 
In  the  latter  event  the  true  course  would  be  to  deduct  the  full 
amount  of  the  mortgage  debt  from  the  price,  and  pay  th*» 
balance  to  the  lienholders. 

The  only  safe  mode  of  determining  the  relative  claims  of 
the  respective  parties  will  be  for  the  master  to  ascertain  the 
fair  market  value  of  the  lot  and  building  and  also  the  value 
of  the  lot  clear  of  the  building,  and  improvement  upon  it, 
as  it  stood  at  the  time  of  the  mortgage.  This  wrill  establish 
the  proportions  of  the  claims  of  the  respective  parties  upon 
the  proceeds  of  this  sale. 

It  will  be  decreed  accordingly. 


REBECCA  CUMMINS  vs.  GEORGE  CUMMINS. 

It  is  a  well  settled  rule  of  this  court  that  in  questions  of  divorce  guilt  can- 
not be  established  by  the  unsupported  testimony  of  either  of  the  parties. 

Although  delay  in  bringing  a  suit  for  divorce,  after  the  discovery  of  the 
commission  of  the  offence  which  is  the  ground  of  the  divorce,  of  itself 
constitutes  no  bar,  yet  it  is  a  circumstance  always  open  to  observation, 
and  may,  and  in  many  cases  ought  to  determine  the  court  against  grant- 
ing relief. 

There  is,  however,  a  difference  in  the  application  of  the  principle  as 
against  the  husband  or  the  wife ;  as  against  the  latter  the  delay  will 
rarely  furnish  evidence  of  condonation  or  connivance. 

It  is  in  accordance  with  the  soundest  principles  of  public  policy  and  of 
morality  that  a  wife,  while  living  in  a  state  of  separation  from  her  hus- 
band in  silent  submission  to  her  wrongs,  shall  not  be  debarred  by  any 
lapse  of  time  from  the  protection  to  which  she  might  otherwise  be  enti- 
tled whenever  the  husband  shall  disturb  her  peace  by  an  attempted  ex- 
ercise of  his  marital  rights. 


OCTOBER  TERM,  1862.  139 

Cummins  v.  Cummins. 
J.  M.  Robeson,  for  complainant. 

/.  Wilson,  for  defendant. 

THE  CHANCELLOR.  The  complainant  seeks  a  divorce  upon 
the  ground  of  adultery  committed  by  her  husband.  The  de- 
fendant, by  his  answer,  denies  the  allegations  of  the  bill,  and 
also  sets  up  the  adultery  of  the  wife  as  a  bar  to  the  suit. 
The  parties  were  married  in  1826.  They  lived  together  until 
March,  1854,  when  they  separated,  the  wife  having  previ- 
ously withdrawn  herself  from  all  cohabitation  with  the  hus- 
band. This  fact  is  established  by  the  evidence  of  both  par- 
ties. Since  the  separation  the  parties  have  continued  to  live 
separate  and  apart  from  each  other,  the  wife  remaining  upon 
the  farm  which  was  given  to  her  by  her  father,  and  the  hus- 
band residing  in  the  immediate  neighborhood  with  the  woman 
with  whom  he  is  charged  to  have  committed  adultery  pre- 
vious to  the  separation  of  the  parties. 

The  charge  of  adultery  against  the  husband  is  satisfactorily 
established  by  the  evidence.  The  charge  is  sustained  not 
only  by  direct  proof  of  the  commission  of  the  offence,  and 
by  the  husband's  admission  of  his  guilt,  but  by  a  chain  of 
circumstances  which  in  themselves  afford  satisfactory  evidence 
of  the  truth  of  the  charge,  and  constitute  sufficient  ground  for 
a  decree. 

The  only  question  in  the  case  arises  upon  the  recriminatory 
charge  made  by  the  defendant's  answer  against  the  wife  in 
bar  of  her  suit. 

The  answer  alleges  that  the  wife  committed  adultery  with 
divers  persons  unknown  to  the  defendant  on  different  days, 
through  a  course  of  years,  extending  from  1853  to  1860  in- 
clusive. There  is  no  evidence  whatever  tending  to  criminate 
the  wife  after  the  parties  separated  in  March,  1854.  The 
evidence  is  confined  to  two  acts  of  adultery  alleged  to  have 
been  committed,  the  one  in  the  summer,  the  other  in  the  fall 
or  winter  previous  to  the  separation.  .  The  proof  of  the  first 
charge  rests  upon  the  direct  testimony  of  a  single  witness 


140  CASES  IN  CHANCERY. 

Cummins  v.  Cummins. 

whose  character  for  truth  and  veracity  is  seriously  impeached. 
The  circumstances  relied  on  by  way  of  corroboration  are  of 
the  lightest  character,  and  are  susceptible  of  a  natural  inter- 
pretation entirely  consistent  with  the  complainant's  innocence. 

The  second  charge  is  proved  by  the  direct  testimony  of  the 
husband,  and  is  attempted  to  be  corroborated  by  the  testimony 
of  the  same  witness  who  was  relied  upon  to  support  the  first 
charge,  and  whose  character  for  truth  and  veracity,  as  well 
as  that  of  the  husband  himself,  is  impeached.  But  admitting 
the  testimony  of  both  the  witnesses  to  be  unimpeached,  the 
charge  of  the  answer  is  not  satisfactorily  established. 

The  direct  testimony  of  the  husband  is,  that  on  the  night 
when  the  oifence  is  alleged  to  have  been  committed  he  slept 
in  his  own  room,  on  the  lower  floor  of  the  house,  with  an 
acquaintance  who  was  spending  the  night  at  his  house,  the 
wife,  as  was  customary,  occupying  a  room  in  the  upper  story 
with  some  of  her  daughters;  that  after  midnight  the  hus- 
band left  the  house,  at  the  request  of  his  guest,  to  harness  his 
horse;  that  returning  speedily  to  the  house,  he  saw  through 
the  window,  by  the  light  of  a  fire  burning  in  the  room,  his 
wife  in  the  bed  which  he  had  just  left  with  his  guest.  On 
his  entering  the  house  he  encountered  his  wife  hastening 
from  the  room  of  his  guest,  and  going  to  her  own  room  up 
stairs.  The  statement  of  the  corroborating  witness  is,  that 
he  heard  the  husband  enter  the  house,  heard  the  steps  of 
some  one  coming  rapidly  up  stairs,  and  heard  the  husband 
loudly  accusing  the  wife  of  her  infidelity.  The  material 
charge  rests  solely  upon  the  evidence  of  the  husband.  No 
one  but  he  pretends  to  have  seen  the  wife  out  of  her  own 
room,  much  less  in  the  room  or  bed  of  the  husband's  guest, 
that  night  but  the  husband  himself.  There  is  no  evidence 
to  show  any  previous  intimacy  or  familiarity  between  the 
wife  and  the  person  with  whom  her  crime  is  alleged  to  have 
been  committed.  He  is  not  shown  to  have  visited  her  at  her 
home,  or  to  have  met  her  elsewhere.  On  the  day  in  question 
he  came  to  the  house,  not  to  visit  the  wife,  but  was  brought 
there  by  the  husbaud.  He  was  a  boon  companion  of  the 


OCTOBER  TERM,  1862.  141 


Cummins  v.  Cummins. 


husband.  They  were  both  men  of  intemperate  habits.  So 
far  as  appears  they  spent  the  evening  together  in  the  hus- 
band's room.  It  is  clearly  shown  that  they  were  drinking 
until  the  guest  lay  upon  the  floor  in  a  state  of  gross  intoxi- 
cation, when  he  was  removed  from  the  floor  to  the  bed  by 
the  husband,  assisted  by  one  of  the  witnesses.  There  is  no 
evidence  that  during  the  evening  the  wife  either  saw  or  spoke 
to  him.  Under  such  circumstances,  that  the  wife  should 
have  left  her  own  apartment,  and  gone  to  the  room  and  bed 
of  her  husband,  then  occupied  by  his  intoxicated  companion, 
in  the  temporary  absence  of  the  husband,  where  she  was 
exposed  to  observation,  is  sufficiently  improbable.  But  the 
further  statement  of  the  husband,  that  after  the  discovery  of 
his  wife's  infidelity,  he  spent  some  time  in  conversation  with 
his  guest,  whom  he  had  just  detected  in  the  act  of  criminal 
intercourse  with  his  wife,  accompanied  him  to  the  stable-,, 
assisted  him  in  harnessing  his  horse,  and  parted  with  him,  so. 
far  as  appears,  with  cordiality  and  without  an  allusion  to  the 
transaction  of  which  he  now  complains,  renders  the  whole 
narrative  in  the  highest  degree  unnatural  and  improbable. 

There  is  another  fact  which  goes  far  to  discredit  the  nar- 
rative of  the  husband.  In  his  answer  to  the  complainant's 
bill  he  sets  up,  as  he  was  bound  to  do,  the  wife's  infidelity  in 
bar  of  her  action.  If  he  then  knew  when,  where,  and  with 
whom  his  wife  had  committed  adultery  he  was  bound  to  have 
ntated  it  in  his  answer.  He  escapes  the  well  known  require- 
ment of  the  rule  of  pleading  by  the  general  averment  that 
fihc  had  committed  adultery  on  different  days  with  divers 
persons  unknoion  to  the  defendant.  That  statement,  though 
not  sworn  to,  must  be  presumed  to  have  been  made  upon 
information  furnished  by  the  defendant  himself.  Had  the  fact, 
as  sworn  to  by  the  defendant,  been  communicated  to  counsel 
it  would  have  been  embodied  in  the  answer.  It  certainly 
could  not  have  escaped  the  recollection  of  the  defendant. 
All  the  corroborating  circumstances  detailed  by  the  other 
witnesses  were  fully  within  his  knowledge  when  the  answer- 
\VMS  put  in. 

VOL.  ii.  I 


142  CASES  IN  CHANCERY. 

Cummins  r.  Cummins. 

We  have  the  husband's  authority  for  saying  that  ho  enter- 
tained suspicions  of  his  wife,  and  it  seems  far  more  reasonable, 
under  the  eircu instances,  to  regard  the  whole  scene  detailed 
by  the  husband  as  produced  by  the  deli  ruin  of  intoxication 
or  by  the  madness  of  jealousy  than  to  receive  it  as  competent 
evidence  of  tlic  guilt  of  the  wife.  I  have  deemed  it  due  to 
the  parties  to  express  my  views  upon  the  weight  of  the  evi- 
dence inculpating  the  wife,  as  it  affects  not  herself  alone,  but 
a  numerous  family  of  children. 

If,  however,  the  evidence  of  the  husband  had  been  much 
stronger  and  more  satisfactory  than  it  is,  the  decision  of  the 
case  must  have  been  against  the  defendant.  It  is  a  well  set- 
tled rule  of  the  court,  that  in  questions  of  divorce  guilt  cannot 
be  established  by  the  unsupported  testimony  of  either  of  the 
parties. 

There  is  another  ground  of  objection  to  the  divorce  which, 
although  not  urged  upon  the  argument,  is  entitled  to  con- 
sideration, viz.  the  length  of  time  which  has  elapsed  since 
the  commission  of  the  offence  complained  of.  As  has  been 
stated,  the  parties  separated  in  March,  1854.  The  acts  of 
adultery  on  which  the  bill  is  founded  were  committed  and 
known  to  the  wife  prior  to  that  time.  Nine  years  at  least 
must  have  elapsed  between  the  time  that  the  wifc-  was  apprised 
of  her  hubband's  infidelity  and  the  filing  of  the  bill.  We  have 
in  this  state  no  statute  of  limitations  applicable  to  syits  for 
divorce,  nor  has  this  court  adopted  any  analogous  rule  in  re- 
gard to  them.  Delay  of  itself,  therefore,  constitutes  no  bar, 
and  yet  it  is  a  circumstance  always  open  to  observation,  and 
which  may,  and  in  many  cases  ought  to  determine  the  court 
against  granting  relief.  "  The  first  thing,"  .said  Lord  Stowcll, 
"  which  the  court  looks  to,  when  a  charge  of  adultery  is  pre- 
ferred, is  the  date  of  the  charge  relatively  to  the  date  of  the 
criminal  fact  charged  and  known  by  the  party,  because  if  the 
interval  be  very  long  between  the  date  and  knowledge  of 
the  fact,  and  the  exhibition  of  them  to  this  court,  it  will  be 
indisposed  to  relieve  a  party  who  appears  to  have  slumbered 
in  sufficient  comfort  over  them ;  and  it  will  be  inclined  to  infer 


OCTOBER  TERM,  1862.  143 

Cummins  v.  Cummins. 

either  an  insincerity  in  the  complaint  or  an  acquiescence  in 
the  injury,  whether  real  or  supposed,  or  a  condonation  of  it." 
Mortimer  v.  Mortimer,  2  Ilagg.  Cons.  It.  310. 

In  Williamson  v.  Williamson,  2  Johns.  Chan.  R.  488, 
Chancellor  Kent  refused  a  divorce  after  the  lapse  of  twenty 
years,  though  the  adultery  was  fully  proved  and  the  counsel 
of  both  parties  requested  that  the  divorce  should  be  granted. 

There  is,  however,  in  this  respect  a  difference  in  the  appli- 
cation of  the  principle  as  against  the  husband  or  the  wife. 
As  against  the  latter,  the  delay  will  rarely  furnish  evidence 
of  condonation  or  connivance.  A  delay  in  bringing  the  suit 
may  moreover  be  not  only  excusable  but  meritorious,  in  the 
hope  of  reconciliation,  or  from  natural  aversion  to  giving 
publicity  to  domestic  difficulties,  or  involving  children  in  the 
reproach  of  a  parent's  guilt.  D'Aguilar  v.  D'Aguilar,  1 
Hagg.  773;  Ferrers  v.  Ferrers^  1  Hagg.  Cons.  R.  130. 

In  UAguilar  v.  D'Aguilar,  Lord  Stowell  said,  "it  has 
never  been  held  that  a  woman's  not  coming  raises  even  a  pre- 
sumption against  the  truth  of  such  an  occurrence ;  there  may 
be  many  reasons  against  such  a  course,  and  here  the  conduct 
of  this  lady  is  accounted  for  by  the  voluntary  separation  be- 
ing acquiesced  in." 

In  the  case  before  the  court,  the  voluntary  separation  of 
the  parties  has  been  acquiesced  in  by  the  husband.  There  is 
no  pretence  of  condonation  or  collusion.  The  case  falls  clearly 
within  the  principle  of  the  adjudicated  cases.  It  is  moreover 
in  entire  accordance  with  the  soundest  principles  of  public 
policy  and  of  morality,  that  a  wife,  while  living  in  a  state  of 
separation  from  her  husband  in  silent  submission  to  her 
wrongs,  shall  not  be  debarred  by  any  lapse  of  time  from  the 
protection  to  which  she  might  otherwise  be  entitled,  whenever 
the  husband  shall  disturb  her  peace  by  an  attempted  exercise 
of  his  marital  rights. 

The  complainant  is  entitled  to  a  decree. 

CITED  in  Palmer  v.  Palmer,  7  C.  E.  Gr.  90. 


144  CASES  IN  CHANCERY. 


Emery  v.  Vansickel. 


LYDIA  EMERY,  wife  of  Nicholas  Emery,  by  her  next  friend, 
vs.  ANDREW  VAXSICKEL  and  others. 

A  married  woman,  owning  real  estate  by  devise  from  her  father  obtained 
an  injunction  against  a  purchaser  of  the  real  estate  umlcr  execution 
against  her  husband,  restraining  him  from  proceeding  with  a  suit  at  law 
to  recover  the  possession  of  the  property.  On  a  motion  to  dissolve  this 
injunction,  it  was  held,  that  as  the  wife's  claim  to  protection  was  founded 
on  her  allegation,  that  by  her  father's  will  the  real  estate  was  devised  to 
her  sole  and  separate  use,  and  that  her  husband  had  no  estate  in  the- 
land  which  could  be  the  subject  of  a  levy  and  sale  at  law  ;  if  that  be  so 
the  wife  has  a  valid  and  complete  defence  at  law,  and  there  is  no  need 
of  the  intervention  of  this  court  to  protect  her  interest. 

The  claim  of  the  wife,  that  if  the  purchaser  under  the  executions  be  per- 
mitted to  proceed  with  his  suit,  it  would  result  in  defeating  the  intention 
of  testator  as  to  his  widow,  by  depriving  her  of  the  home  which  by  the 
will  he  directed  she  should  enjoy  with  his  daughter  on  the  premises  in 
question,  cannot  avail  her  in  this  suit.  So  far  as  these  considerations  es- 
tablish any  legal  right  in  the  widow,  they  are  available  only  in  her  be- 
lialf  and  at  her  instance.  The  complainant  cannot  by  her  bill  enforce 
the  legal  or  equitable  rights  of  another. 

An  injunction  having  been  granted  on  filing  the  bill,  the 
defendant  answered  the  bill,  and  now  moves  to  dissolve  the 
injunction. 

Van  Fled,  for  the  motion. 
Allen  and  VansycMe,  contra. 

THE  CHANCELLOR.  The  bill  is  filed  on  behalf  of  the  wife 
of  Nicholas  Emery,  to  protect  her  interest  in  certain  real 
estate  devised  to  her  by  her  father,  George  Apgar,  deceased, 
against  the  claim  of  a  purchaser  of  the  real  estate  under  ex- 
ecutions against  her  husband.  The  testator  died  on  the 
twenty-ninth  of  July,  1846,  seized  of  the  land  so  devised  to 
the  complainant,  and  of  which,  as  the  bill  alleges,  she  is  now 
in  possession.  The  bill  charges  that  judgments  at  law  have 
been  recovered  against  the  said  Nicholas  Emery,  and  execu- 
tions issued  thereon,  and  that  by  virtue  thereof  the  right, 


OCTOBER  TERM,  1862. 


145 


Emery  v.  Vansickel. 


title,  interest,  and  estate  of  the  said  Nicholas  Emery  in  the 
lands  devised  to  the  complainant  were  levied  upon,  sold,  and 
conveyed  to  Andrew  Vansickel,  the  defendant,  by  deed  dated 
on  the  ICth  of  June,  1862,  and  that  an  action  of  ejectment 
has  been  commenced  in  the  Supreme  Court  against  the  said 
Nicholas  Emery  for  the  recovery  of  the  possession  of  the  said 
premises.  The  prayer  of  the  bill  is,  that  the  plaintiff  in 
ejectment  be  enjoined  against  proceeding  further  in  his  action 
for  the  recovery  of  the  said  premises,  and  from  instituting 
any  new  action  for  that  purpose. 

The  first  ground  upon  which  the  injunction  is  sought  to  be 
sustained  is,  that  by  the  terms  of  the  devise  and  the  true 
construction  of  the  will  of  the  said  George  Apgar,  the  land 
was  devised  to  the  complainant  for  her  sole  and  separate  use, 
and  that  the  husband  has  no  interest  or  estate  therein  which 
can  be  the  subject  of  levy  and  sale  at  law,  or  by  virtue  of 
which  she  can  be  disturbed  in  the  possession  and  enjoyment 
of  her  estate.  If  this  be  so,  it  is  obvious  that  the  complain- 
ant has  a  valid  and  complete  defence  at  law  where  the  action 
is  now  pending.  It  appears,  by  the  answer,  that  she  baa 
been  admitted  as  a  defendant  to  defend  the  action  of  eject- 
ment in  her  own  name.  The  defence,  therefore,  upon  thia 
ground  is  as  available  at  law  as  in  equity.  It  appears  to  me 
that  if  the  fifth  clause  of  the  will  be  available  for  the  protec- 
tion of  the  rights  of  the  wife  at  the  present  stage  of  the  con- 
troversy, it  must  be  on  the  ground  that  it  manifests  an  intent, 
on  the  part  of  the  testator,  that  she  should  take  the  land  for 
her  sole  and  separate  use,  and  that  the  husband  has  no  estate 
therein.  If  the  clause  be  susceptible  of  any  other  construc- 
tion in  favor  of  the  complainant,  I  think  it  affords  no  ground 
for  interfering  with  the  investigation  and  determination  on 
the  legal  rights  of  the  parties  in  a  court  of  law. 

The  second  ground  for  the  continuance  of  the  injunction 
is,  that  the  intention  of  the  testator  in  regard  to  the  provi- 
sions made  for  his  widow,  the  mother  of  the  complainant, 
cannot  be  carried  into  effect  if  the  complainant  is  removed 
from  the  premises.  The  bill  alleges  that  the  widow  is  aged 


146  CASES  IN  CHANCERY. 

Kirrigan  v.  Kirrigan. 

and  infirm,  and  requires  the  care  and  protection  of  (he  com- 
plainant; that  it  was  the  design  of  the  testator  not  only  to 
provide  for  his  widow  a  home  upon  the  farm,  hut  to  secure 
to  her,  at  that  home,  the  care  and  attention  which  a  daughter 
only  would  bestow ;  and  that  the  widow  has  a  right  to  have 
her  board  and  to  receive  this  care  upon  the  farm  and  from 
the  complainant,  and  not  elsewhere  or  at  the  hands  of  stran- 
gers. So  far  as  these  considerations  may  serve  to  establish 
any  legal  right  in  the  widow,  they  are  available  only  in  her 
behalf  and  at  her  instance.  The  complainant  cannot  by  her 
bill  enforce  the  legal  or  equitable  rights  of  another.  They 
can  strengthen  the  case  of  the  complainant  on)y  so  far  as 
they  may  serve  to  indicate  the  intention  of  the  testator  as  to 
the  character  of  the  estate  which  his  daughter  should  take 
in  the  land  devised.  In  this  view  it  involves  simply  a  question 
of  legal  title.  It  raises  no  equity  in  favor  of  the  daughter. 

The  injunction  was  granted  under  an  apprehension  that  the 
terms  of  the  will,  which  are  peculiar  and  to  some  extent  con- 
flicting, created  a  trust  in  favor  of  the  complainant  aside  from 
the  legal  estate  devised,  which  it  was  the  peculiar  province 
and  duty  of  this  court  to  protect,  and  in  regard  to  which  the 
rights  of  the  complainant  might  be  prejudiced  by  a  recovery 
at  law.  I  think  this  was  a  misapprehension  of  the  case. 
There  can  be  no  advantage  derived  from  holding  the  case  till 
a  final  hearing. 

The  injunction  must  be  dissolved  and  the  bill  dismissed. 


SARAH  KIRRIGAN  vs.  WILLIAM  KIRRIGAX. 

In  a  suit  for  divorce,  instituted  by  the  wife,  where  it  appears  that  the  parties 
Lave  already  been  divorced  by  a  decree  of  a  court  of  Indiana,  in  a  proceed- 
ing instituted  by  the  husband,  the  wife  has  no  title  to  the  aid  of  this  court. 

When  it  appears,  by  the  record  of  the  proceedings  in  Indiana,  that  tho 

'  court  had  jurisdiction  both  of  the  parties  and  of  the  subject  mailer,  that 

the  defendant  appeared  by  counsel,  and  has  received  from  the  clerk  of 

that  court  the  sum  awarded  her  in  that  suit  for  alimony,  she  will  not  now 


OCTOBER  TERM,  1862. 


147 


Kirrigan  v.  Kirrigan. 


be  permitted  to  impugn  the  decree  on  the  ground  that  it  was  fraudulently 
obtained. 

When  it  appears,  to  the  satisfaction  of  the  court,  that  the  proceedings  have 
not  been  instituted  by  the  wife  in  good  faith  for  the  purpose  of  obtaining 
a  divorce,  but  for  the  mere  purpose  of  collecting  money  from  her  hus- 
band, or  compelling  him  to  support  her,  alimony  will  be  denied,  and  a 
writ  of  ne  exeat  previously  issued  will  be  quashed. 


This  case  came  before  the  court  on  a  motion  in  behalf  of 
the  petitioner  for  alimony  and  counsel  fees,  and  a  cross-motion 
by  defendant  to  vacate  a  writ  of  ne  exeat  previously  issued, 
and  discharge  him  from  arrest. 

Slaight,  for  petitioner,  cited  Bisliop  on  Marriage  and  Di- 
vorce, §  709,  714,  75&,  73&  &;  Revised  Statutes  of  Indiana, 
234,  §  7. 

Zabriskie,  for  defendant,  cited  Story  on  Conf.  of  Laws,  § 
230 ;  Bishop  on  Marriage  and  Divorce,  §  720,  732 ;  Brad- 
ehaw  v.  Heath,  13  Wendell  407. 

THE  CHANCELLOR.  The  petitioner  in  this  cause  seeks  a 
divorce  from  her  husband  on  the  ground  of  adultery.  Upon 
filing  the  petition,  accompanied  by  an  affidavit  of  the  wife 
that  the  defendant  designed  quickly  to  depart  from  the  state, 
and  that  she  believed  him  to  be  worth  at  least  thirty  thou- 
sand dollars,  a  writ  of  ne  exeat  issued,  with  an  order  endorsed 
requiring  bond  to  be  given  in  the  sum  of  five  thousand  dol- 
lars. The  case  now  comes  before  the  court  upon  a  petition 
of  the  complainant  for  an  allowance  of  alimony  pendente  lite 
and  counsel  fees,  and  upon  a  cross-motion  on  the  part  of  the 
defendant  to  be  discharged  from  arrest  under  the  writ  of  ne 
exeaL  At  the  close  of  the  argument  the  case  disclosed  by 
the  evidence  appeared  so  stnwig  against  the  right  of  the  petii- 
tkttier  to  redress  that  the  defendant  was  immediately  dis- 
charged. On  a  further  consideration  of  the  case,  I  ani entirely 
satisfied  not  only  that  the  decision  then  made  was  correct,,  bufc 
that  the  applicatioa  for  alimony  and  counsel  fees,  must  be 
denied* 


148  CASES  IN  CHANCERY. 

Kirrigan  r.  Kirrigan. 

The  material  facts  of  the  case,  as  they  are  disclosed  by  the 
petition  or  established  by  the  evidence,  arc  that  the  parties 
were  married  in  the  year  1842,  in  the  eity  of  Philadelphia, 
where  they  then  resided,  and  where  they  continued  to  reside 
together  as  man  and  wife  until  the  year  1854,  when,  as  the 
petitioner  alleges,  the  husband  eloped  in  company  with  another 
woman,  with  whom  he  lived  in  adultery.  Proceedings  were 
instituted  by  the  wife  in  the  state  of  Pennsylvania  for  a  di- 
vorce, and  on  the  fourteenth  of  September,  1854,  a  decree  was 
made  by  the  court  that  the  husband  should  pay  for  the  sup- 
port of  his  wife  six  dollars  a  week.  On  the  thirtieth  of  Jan- 
uary, 1855,  the  wife  obtained  an  order  for  an  additional  allow- 
ance of  six  dollars  per  week,  making,  with  the  former  allow- 
ance, the  sum  of  twelve  dollars  per  week  for  the  support  of 
herself  and  her  family.  The  allowance  remains  unpaid,  ex- 
cept the  sum  of  eight  hundred  dollars,  the  amount  of  security 
required  and  given  for  the  performance  of  the  order.  So  far 
as  appeal's,  the  orders  for  maintenance  are  si  ill  in  force,  and 
the  proceedings  for  divorce  pending  and  undetermined.  From 
1854  until  1859,  it  is  alleged  that  the  husband  resided  prin- 
cipally in  the  state  of  New  York.  On  the  twenty-third  of 
February,  1859,  he  obtained,  in  the  Circuit  Court  of  the 
county  of  Whitlcy,  in  the  state  of  Indiana,  a  decree  of  divorce 
against  his  wife  from  the  bond  of  matrimony.  In  1861,  the 
complainant  institute;!  a  suit  against  the  defendant,  in  the 
state  of  Nt-w  York,  for  her  maintenance  ami  support,  which 
was  dismissed  on  the  ground,  as  she  believes,  that  the  husband 
was  not  a  resident  of  that  state.  The  defendant  is  now  trans- 
acting, with  limited  means,  a  small  business  in  the  city  of 
New  York,  having  his  home  in  this  s  ate.  The  complainant, 
since  her  desertion  by  her  husband,  has  resided  in  the  state  of 
Pennsylvania,  where  she  still  continues  to  reside.  The  adul- 
tery complained  of  is  alleged  to  have  been  committed  in  this 
state  within  the  last  eighteen  months. 

I  think  it  is  apparent,  from  the  evidence,  that  these  pro- 
ceedings were  not  instituted  by  the  complainant  in  good  faith 
for  the  purpose  of  obtaining  a  divorce,  but  for  the  mere  pur- 


OCTOBER  TERM,  1862. 


149 


Kirrigan  v.  Kirrigan. 


pose  of  recovering  money  from  the  defendant,  or  of  compel- 
ling him  to  support  her.  The  parties  are  already  divorced  by 
the  decree  of  a  judicial  tribunal,  obtained  by  the  husband  in 
the  state  of  Indiana.  Proceedings  for  a  divorce  were  long 
since  instituted  by  the  wife  in  the  state  of  Pennsylvania,  the 
place  of  the  parties'  domicil,  where,  if  the  allegations  of  the 
petitioner  are  true,  a  decree  of  divorce  has  been  or  may  be 
obtained  against  the  defendant.  In  1861  proceedings  against 
the  defendant  were  instituted  by  the  complainant,  in  the  state 
of  New  York,  for  her  support  and  maintenance.  On  filing 
her  petition  for  a  divorce  in  this  state,  the  petitioner  sued 
out  a  writ  of  ne  exeat  upon  an  affidavit  that  he  was  worth  at 
least  thirty  thousand  dollars,  by  virtue  of  which  the  defend- 
ant was  arrested  and  imprisoned.  It  appears  satisfactorily 
from  the  evidence  that  the  value  of  the  defendant's  property 
was  grossly  overrated,  and  that  he  was  unable  to  give  bail, 
even  in  the  sum  of  five  thousand  dollars.  I  cannot  but  regard 
the  proceedings  on  the  part  of  the  complainant  as  instituted 
in  bad  faith,  (without,  as  1  am  convinced,  any  participation 
on  the  part  of  her  counsel,)  and  as  a  gross  abuse  of  the  pro- 
cess of  the  court.  On  this  ground  alone  I  should  unhesitat- 
ingly quash  the  writ  of  ne  exeat,  and  refuse  to  allow  alimony. 
But  aside  from  this  view  of  the  case,  the  petitioner  has  no 
title  to  the  aid  of  this  court ;  as  the  facts  now  appear  in  evi- 
dence, she  is  not  the  wife  of  the  defendant.  The  parties  have 
been  divorced  by  a  decree  of  a  judicial  tribunal  in  the  state 
of  Indiana.  It  is  urged  that  that  decree  was  fraudulently 
obtained,  inasmuch  as  at  the  time  neither  of  the  parties  were 
bona  fide  residents  of  that  state,  and  that  the  husband  went 
from  the  state  of  his  domicil,  and  took  lodgings  at  a  hotel  in 
the  state  of  Indiana,  for  the  mere  purpose  of  obtaining  the 
divorce,  and  that  he  returned  to  the  place  of  his  domicil  in 
New  York  immediately  after  the  decree  was  obtained.  The 
fact  of  the  fraud  is  not  established.  It  is  declared  by  the 
decree,  that,  at  the  time  it  was  granted  the  husband  was  a 
bona  fide  resident  of  the  county  of  Whit  ley,  in  the  state  of 
Indiana.  The  court,  as  appears  upon  the  face  of  the  decree 


150  CASES  IN  CHANCERY. 

Benedict  v.  Benedict. 

1  iiul  jurisdiction  of  (lie  parties  as  well  as  of  the  subject  matter. 
Both  parties  were  before  the  court.  The  defendant  appeared 
by  counsel.  Five  hundred  dollars  were  adjudged  to  her  as 
alimony  by  the  decree.  That  sura  the  wife  received  from  the 
clerk  of  the  court  in  full  of  the  alimony  awarded  by  the  de- 
cree. The  wife  having  appeared  to  the  suit,  and  having 
accepted  the  amount  awarded  to  her  by  the  decree  for  alimony, 
will  not  be  permitted  to  impugn  the  decree  on  the  ground 
that  it  was  fraudulently  obtained.  And  even  if  the  decree 
might  be  legally  assailed  upon  this  ground,  it  must  be  pre- 
sumed to  be  valid  until  the  fraud  is  clearly  established  in 
evidence. 

The  motion  for  alimony  and  counsel  fees  is  denied. 

CITED  fa  Xidiols  v.  Nichols,  10  C.  E.  Or.  63. 


JESSE  W.  BENEDICT  vs.  JAMES  M.  BENEDICT  and  others. 

Complainant  and  defendant,  being  botli  residents.of  the  city  of  New  York, 
were  both  creditors  of  the  firm  of  H.  S.  &  Sons,  also  doing  business  in 
New  York.  Both  had  presented  their  claims,  and  obtained  judgment  in 
an  attachment  which  had  been  sued  out  against  the  firm  in  this  state,  and 
by  virtue  of  which  the  property  of  one  of  the  firm,  situate  in  this  state, 
had  been  attached,  but  not  sufficient  in  value  to  satisfy  the  claims  of  all 
the  applying  creditors  under  the  attachment.  The  defendant  was  also  a 
preferred  creditor  for  the  amount  of  his  claim  under  an  assignment  exe- 
cuted by  II.  S.  &  Sons,  in  the  city  of  New  York,  by  virtue  of  which  the 
assignee  held  assets  enough  to  satisfy  the  claims  of  the  creditors  in  the 
same  class  witli  the  defendant,  but  not  enough  to  pay  the  general  cred- 
itors, of  whom  the  complainant  was  one.  Defendant  also  held  other 
collateral  securities  for  the  payment  of  the  same  debt.  On  a  bill  filed  by 
the  complainant  to  restrain  the  defendant  from  receiving  any  dividend 
under  the  attachment  until  he  had  first  exhausted  his  remedy  under  the 
assignment,  and  had  resorted  to  the  collateral  securities  held  by  him,  it 
was  A  i7</ — 

That  the  complainant  had  no  equity  to  justify  this  court  in  arresting  the 
proceedings  under  the  attachment,  or  in  interfering  with  the  mode  of 
distribution  pointed  out  by  tlie  statute. 

The  rule  of  equity  is  well  settled,  that  where  one  has  a  lien  upon  two  funds, 
and  another  a  subsequent  lien  upon  one  of  them  only,  the  former  will  be 
compelled  first  to  exhaust  the  subject  of  iiis  exclusive  lien,  and  will  be 


OCTOBER  TERM,  1862. 


151 


Benedict  v.  Benedict. 


permitted  to  resort  to  the  other  for  the  deficiency  only.  But  the  equity 
is  a  personal  one  against  the  debtor,  and  does  not  bind  the  paramount 
creditor  nor  the  debtor's  alienee  for  value. 

It  is  an  equity  against  the  debtor  himself  that  the  accidental  resort  of  the 
paramount  creditor  to  the  doubly  charged  estate,  and  the  consequent 
exhaustion  of  that  security,  shall  not  enable  him  to  get  back  the  second 
estate  discharged  of  both  debts. 

The  objection  to  throwing  the  claim  of  the  defendant  upon  the  assignment 
for  satisfaction  is,  that  it  cannot  be  done  without  prejudice  to  the  claims 
of  the  creditors,  who  are  entitled  to  share  the  fund  under  the  assignment, 

The  statute  of  this  state  only  prohibits  preference  of  one  creditor  over  an 
other  in  a  general  assignment  for  the  benefit  of  creditors,  and  not  in  any 
other  form.  Every  debtor,  by  our  law,  has  a  right  to  prefer  one  creditor 
over  another  by  mortgage,  by  judgment,  or  by  any  other  mode  than 
that  which  the  statute  prohibits,  and  such  preferences,  especially  when 
made  in  favor  of  sureties  or  confidential  Creditors,  are  not  regarded  with 
disfavor  or  treated  as  inequitable. 

As  between  citizens  of  New  York,  where  preferences  by  assignment  are 
allowed  by  law,  no  distinction  can  be  made  between  the  equitable  char- 
acter of  the  claims  under  the  attachment  and  under  the  assignment. 


On  filing  the  bill  in  this  case  a  preliminary  injunction  was 
allowed  under  the  circumstances,  which  are  stated  in  the 
Chancellor's  opinion. 

Defendant,  having  answered  the  bill,  now  moves  to  dissolve 
the  injunction. 

J.  W.  Scudder  and  Bradley,  for  the  motion. 
Slaight  and  Zabriskie,  contra. 

THE  CHANCELLOR.  The  complainant  and  defendant  are 
respectively  creditors  of  the  late  firm  of  Horace  Southmayd 
&  Sons,  merchants  of  the  city  of  New  York.  On  the  first 
of  April,  1861,  the  complainant  caused  an  attachment  to  be 
issued  out  of  the  Circuit  Court  of  the  county  of  Hudson 
against  the  estate  of  the  partners  in  said  firm,  as  nonresi- 
dent debtors.  The  attachment  was  served  upon  the  real 
estate  of  Horace  Southmayd,  one  of  the  partners.  On  the 
twentieth  of  April,  1862,  judgment  in  the  attachment  was 
rendered  in  favor  of  the  complainant,  Jesse  AV.  Benedict,  for 
$2079.60,  in  favor  of  James  M.  Benedict  for  $48,407.45, 


153  OASES  IN  CHANCERY. 

Benedict ».  Benedict. 

and  in  favor  of  numerous  other  creditors  for  various  sums, 
amounting  in  the  whole  to  §68,491,  greatly  exceeding  in 
amount  the  estimated  value  of  the  real  estate  attached.  On 
the  twenty-fifth  of  April,  1861,  the  firm  of  Horace  South- 
may  d  &  Sons  made  an  assignment  of  all  their  partnership 
property,  under  the  laws  of  the  state  of  New  York,  for  thd 
benefit  of  their  creditors,  to  Frederick  II.  Trowbridge,  there- 
by giving  preferences  to  various  classes  of  creditors.  James 
M.  Benedict  is  a  preferred  creditor  under  that  assignment, 
and  the  property  assigned  will  be  sufficient  to  satisfy  his  claim. 
The  complainant  is  not  a  preferred  creditor  under  the  assign- 
ment. By  the  terms  of  the  assignment,  he  is  to  be  paid, 
in  common  with  the  general  creditors,  after  the  claims  of  all 
the  preferred  creditors  are  satisfied.  The  assets  in  the  hands 
of  the  assignee  will  not  be  sufficient,  after  paying  the  preferred 
creditors,  to  satisfy  the  general  creditors.  The  bill  also 
charges  that  James  M.  Benedict  is  fraudulently  confederating 
with  Horace  Southmayd  &  Sons  for  their  benefit,  and  that  he 
intends  to  accept  payment  both  under  the  assignment  and 
under  the  judgment  in  attachment.  The  bill  also  charges 
that  other  collaterals  are  held  by  James  M.  Benedict  for  the 
payment  of  the  same  debt,  and  that  he  is  not  entitled  to  come 
in  under  the  assignment  until  he  has  exhausted  his  remedy 
upon  those  securities. 

The  bill  a-sks  that  the  defendant,  James  M.  Benedict,  be 
restrained  from  receiving  any  dividend  under  the  judgment 
in  attachment  until  the  claims  of  the  complainant  and  of  other 
applying  creditors  under  the  attachment  are  satisfied,  and  that 
the  assets  of  the  firm  be  marshalled,  and  applied  in  satisfac- 
tion of  the  debts  upon  equitable  principles. 

The  fact  that  the  .property  attached  is  the  individual  prop- 
erty of  one  of  the  partners,  and  not  the  joint  property  of  the 
firm,  in  no  wise  affects  the  rights  or  equities  of  the  parties 
to  this  suit.  Both  the  complainant  and  defendant  arc  credi- 
tors of  the  firm.  The  separate  estate  of  an  individual  part- 
ner is,  by  the  express  terms  of  the  statute,  made  liable  to  an 
attachment  for  the  recovery  of  a  debt  due  from  the  partner- 


OCTOBER  TERM,  1862.  153 

Benedict  r.  Benedict. 

?hip,  and  is  liable  to  be  sold  or  assigned  under  the  attachment 
for  the  payment  of  such  joint  debt.  Nix.  Dig.  42,  §  42. 

If  any  objection  was  designed  to  be  raised  to  the  form  of 
attachment,  this  is  neither  the  time  nor  the  forum  in  which 
that  objection,  if  it  existed,  can  be  made  available.  Judg- 
ment upon  the  attachment  has  been  rendered,  and  the  prop- 
erty made  answerable  to  the  claims  of  the  creditors  of  the 
firm. 

The  only  question  now  open  for  the  determination  of  this 
court  is,  how  is  the  money  arising  from  the  sale  of  the  prop- 
erty attached  to  be  distributed  ?  The  statute  has,  with  great 
precision  and  minuteness,  prescribed  the  time  when,  the 
manner  in  which,  and  the  persons  to  whom  the  distribu- 
tion shall  be  made.  It  directs,  among  other  things,  that  the 
auditors  "shall  distribute  among  the  said  plaintiffs  and  cred- 
itors, equally  and  in  a  ratable  proportion,  according  to  the 
quantum  or  amount  of  their  respective  debts,  as  ascertained 
by  the  said  report  and  the  judgment  thereon,  all  the  moneys 
arising  from  the  sale  of  the  said  goods  and  chattels,  lands 
and  tenement",  first  deducting  legal  costs  and  charges."  Nix. 
Dig.  41,  §  3G. 

Each  petitioning  creditor  under  the  attachment  has  a  judg- 
ment in  his  favor  for  his  debt,  which  he  is  entitled  to  have 
satisfied  out  of  the  proceeds  of  the  sale,  so  far  as  there  are 
assets  for  that  purpose.  It  is  made  the  duty  of  the  auditors 
PO  to  distribute  the  fund.  Will  a  court  of  equity  so  far  in- 
terfere with  the  legal  rights  of  the  creditor  as  to  prevent  his 
receiving  satisfaction  of  an  admitted  debt  out  of  a  fund  raised 
by  judicial  proceeding  ready  to  be  paid  over  and  especially 
appropriated-  to  the  satisfaction  of  that  debt,  and  turn  him 
round  upon  a  mere  question  of  equity  to  seek  his  remedy  by 
legal  process  upon  his  collaterals  or  by  proceeding  in  a  foreign 
jurisdiction  ?  Can  this  be  done  without  an  unwarrantable 
infringement  of  his  legal  rights?  Even  if  this  be  admissible 
in  the  case  of  a  judgment  creditor,  wh ere  the  rights  of  a  single 
creditor  are  involved,  will  the  court,  upon  a  principle  of  sound 
public  policy,  arrest  the  proceedings  in  attachment  and  the 


154  CASES  IN  CHANCERY. 

Benedict  v.  Benedict. 

distribution  of  the  fund  among  the  creditors  upon  questions 
of*  equity  arising  between  individual  creditors? 

It  would  seem  that  the  utmost,  under  such  circumstances, 
the  complainant  could  ask  would  be  to  be  subrogatcd  to  the 
rights  of  the  defendant,  his  claim  being  first  satisfied  in  full. 
But  that  relief  the  complainant  does  not  ask  and  cannot  have. 
The  whole  frame  of  the  bill  rests  upon  the  assumption  that, 
if  James  M.  Benedict  comes  in  under  the  attachment,  none 
of  the  creditors  claiming  under  the  attachment  can  receive 
their  claims  in  full.  Unless  his  claim  is  satisfied  in  full  he 
cannot  be  asked  to  surrender  his  securities,  nor  can  the  com- 
plainant claim  to  be  subrogated  to  his  legal  rights.  What 
the  complainant  does  ask  is,  that  the  defendant  shall  be  com- 
pelled to  apply  first  the  proceeds  under  the  deed  of  assign- 
ment made  for  the  benefit  of  creditors  in  New  York,  and  of 
the  several  collateral  securities  in  his  hands,  to  the  payment 
of  his  claim  before  resorting  to  the  attaciied  property  or  the 
funds  in  the  hands  of  the  auditors,  and  that  he  shall  be  per- 
mitted to  claim  from  the  auditors  a  dividend  only  upon  such 
part  of  his  claim  as  shall  not  be  satisfied  by  the  said  securi- 
ties, or  that  the  said  securities  shall  be  marshalled  in  such 
manner  as  to  secure  to  the  complainant  and  the  other  judg- 
ment creditors  under  the  attachment  the  full  benefit  and 
advantage  pro  rota  of  the  said  securities. 

This  end  cannot  be  attained  in  the  mode  proposed  without 
driving  James  M.  Benedict  to  sue  upon  his  collaterals,  delay- 
ing him  in  the  receipt  of  his  money,  compelling  him  to  incur 
the  hazard,  expense,  and  delay  of  litigation,  and  at  the  same 
time  arresting  the  proceedings  in  attachment  and  the  distri- 
bution of  the  funds  by  the  auditors  for  an  indefinite  and  un- 
certain period,  until  the  suits  upon  the  collaterals  and  the 
proceedings  under  an  assignment  in  a  foreign  jurisdiction  may 
be  eventually  settled. 

When  the  injunction  was  issued  I  was  not  without  appre- 
hension that  this  measure  would  be  an  unwarrantable  inter- 
ference with  the  proceedings  under  the  attachment,  in  conflict 
with  the  policy  of  the  law  and  a  violation  of  the  rights  of 


OCTOBER  TERM,  1862.  155 


Benedict  v.  Benedict. 


the  other  attaching  creditors.  There  are  cases,  I  am  aware, 
that  sustain  this  proceeding,  so  far  as  it  may  affect  the  righta 
of  James  M.  Benedict  alone,  though  even  upon  this  point  the 
authorities  are  in  conflict.  Adams'  Eq.  372,  note  2,  and 
cases  there  cited  ;  2  Leading  Cases  in  Eq.  276-279. 

But  I  am  not  aware  of  any  authority  which  sanctions  the 
extent  of  power  which  the  court  is  asked  to  exercise  in  this 
cause,  nor  do  I  perceive  any  principle  upon  which  it  can  be 
sustained.  But  if  this  objection  be  unfounded,  and  the  right 
of  the  complainant  to  claim  the  interference  of  the  court  for 
the  protection  of  his  rights  be  clear,  has  he  any  equity  which 
entitles  him  to  the  relief  asked  for? 

The  first  ground  of  relief  is,  that  the  defendant  is  a  pre- 
ferred creditor  under  the  assignment  in  New  York,  and  that 
his  claim  is  secured  upon  that  fund.  The  rule  of  equity  \a 
well  settled,  that  where  one  has  a  lien  upon  two  funds,  and 
another  a  subsequent  lien  upon  one  of  them  only,  the  former 
will  be  compelled  first  to  exhaust  the  subject  of  his  exclusive 
lien,  and  will  be  permitted  to  resort  to  the  other  for  the  defi- 
ciency only.  But  the  .equity  is  a  personal  one  against  the 
debtor,  and  docs  not  bind  the  paramount  creditor  nor  the 
debtor's  alienee  for  value. 

It  is  an  equity  against  the  debtor  himself,  that  the  acci- 
dental resort  of  the  paramount  creditor  to  the  doubly  charged 
estate,  and  the  consequent  exhaustion  of  that  security,  shall 
not  enable  him  to  get  back  the  second  estate  discharged  of 
both  debts.  Adams'  Eq.  (ed.  1859)  585. 

But  it  is  clear  that  the  debtor  in  this  case  cannot  get  back 
the  estate  held  under  the  assignment  discharged  of  either 
debt.  That  estate  in  the  hands  of  the  assignee,  after  the 
satisfaction  of  the  claim  of  James  M.  Benedict,  is  charged 
with  all  the  debts  of  the  firm  of  South mayd  &  Sons,  including 
the  debt  of  the  complainant  himself.  The  debtor? cannot  get 
back  the  estate,  nor  derive  any  benefit  from  the  fund  assigned, 
until  all  their  debts  are  paid  in  full.  This  difficulty  appears 
to  have  presented  itself  to  the  mind  of  the  draftsman  of  the 
bill,  and,  as  if  to  avoid  it,  he  charges  a  fraudulent  combiua- 


156          •         CASES  IN  CHANCERY. 

Benedict  r.  Benedict. 

tion  between  Benedict  and  the  debtors,  in  pursuance  of  which 
the  former  is  to  receive  the  benefit  of  b  th  funds,  and  turn 
them  over  to  the  debtors.  But  the  court  will  not  presume 
a  gross  breach  of  duty  by  the  assignee  in  New  York.  Bene- 
dict clearly  cannot  be  paid,  twice.  If  lie  receives  his  share 
of  the  fund  under  the  attachment  in  part  payment  of  his 
claim,  it  will  diminish  by  so  much  his  claim  to  a  dividend 
tinder  the  assignment.  It  must  be  presumed  that  the  courts 
of  New  York,  to  whose  jurisdiction  and  control  the  assignee 
is  subject,  will  compel  the  performance  of  his  duly,  or  hold 
him  responsible  for  its  breach.  The  equity,  therefore,  which 
is  asked  to  be  enforced  against  the  debtors,  if  enforced  in  the 
manner  proposed,  will  affect  not  the  debtors  but  their  alienees 
for  value.  It  will  affect  the  general  creditors  of  Southmayd 
&  Sons  under  the  assignment,  creditors  in  equal  degree  with 
the  complainant,  and  for  whose  benefit  the  fund  was  assigned. 
Adamx'  Eq.  272,  and  cases  cited  in  note ;  2  Leadiny  Cases  in 
Eq.  221  j  McGinnist  Appeal,  1G  Penn.  St.  It.  445. 

In  considering  this  question,  it  must  be  assumed  that  the 
assignment  made  by  the  debtors  for  the  benefit  of  their  cre- 
ditors in  the  state  of  New  York  is  a  valid  and  lej^al  assign- 

D  o 

ment  under  the  laws  of  that  state,  and  that  all  its  provisions 
are  in  accordance  with  the  recognized  principles  of  law  and 
equity  which  there  prevail.  The  debtors  had  a  right,  by  their 
assignment,  to  make  preferences  among  their  creditors,  to 
prescribe  the  order  of  priority  in  which  the  creditors  .should 
be  paid,  and  the  amounts  they  should  respectively  receive. 
These  provisions  the  trustee  is  bound  to  carry  into  effect. 
The  terms  of  the  assignment  are  the  law  of  the  trust,  which 
the  trustee  must  respect.  They  regulate  the  rights  of  the 
several  classes  of  creditors  under  the  assignment.  These 
preferences  are  for  the  purpose  of  this  case  not  to  be  regarded 
as  inequitable.  Our  statute  lias  indeed  prohibited  all  pre- 
ferences of  one  creditor  over  another  in  a  general  assignment 
for  the  benefit  of  creditors.  But  it  does  not  prohibit  it  in 
any  other  form.  Every  debtor,  by  our  law,  has  a  right  by 
the  transfer  of  property  by  mortgage,  by  judgment,  or  in  any 


OCTOBER  TERM,  1862. 


157 


Benedict  r.  Benedict. 


other  form,  except  by  general  assignment  for  the  benefit  of 
creditors,  to  prefer  one  creditor  over  another ;  and  these  pre- 
ferences, especially  when  made  in  favor  of  confidential  cre- 
ditors or  mere  sureties,  are  not  regarded  with  disfavor  or 
treated  as  inequitable.  No  distinction,  therefore,  can  be  made 
between  the  equitable  character  of  the  claims  under  the  at- 
tachment and  under  the  assignment,  especially  as  between 
citizens  of  the  state  of  New  York,  where  the  assignment  is 
made. 

The  decided  objection  to  throwing  the  claim  of  the  defend- 
ant upon  the  assignment  for  satisfaction,  is,  that  it  cannot  be 
done  without  prejudice  to  the  claims  of  the  creditors  who  are 
entitled  to  share  the  fund  under  the  assignment. 

It  will  operate  to  the  prejudice  either  of  the  creditors  in 
the  same  class  with  the  defendant,  or,  if  there  be  funds  suffi- 
cient to  satisfy  those  claims  in  full,  it  will  operate  to  the 
prejudice  of  the  general  creditors,  who  are  in  the  next  class, 
and  are  not  preferred.  They  have  equal  equities  and  an  equal 
claim  to  protection  with  the  creditors  under  the  attachment, 
and  I  perceive  no  ground  upon  which  the  claim  of  the  de- 
fendant can  be  thrown  exclusively  upon  that  fund  to  their 
prejudice.  All  that  the  complainant  can  ask  is  that  the  de- 
fendant shall  not  receive  his  pay  twice,  or  use  it  for  the  benefit 
of  the  debtors.  That  result  is  secured  by  the  terms  of  the 
assignment.  The  creditors  entitled  under  it  can  receive  a 
dividend  only  upon  what  may  remain  due  after  deducting 
from  their  respective  claims  the  amount  received  upon  their 
collateral  securities. 

If  the  complainant  was  a  citizen  of  this  state,  complaining 
of  the  effect  of  the  assignment  in  a  foreign  jurisdiction,  al- 
leging that  it  operated  in  evasion  of  our  statute,  and  to  the 
prejudice  of  his  interest,  and  claiming  to  have  the  funds  ad- 
ministered in  this  state  for  his  benefit,  a  different  case  would 
be  presented  for  consideration.  But  it  is  unnecessary  to  con- 
sider the  case  in  this  aspect.  The  complainant  and  defend- 
ant are  both  citizens  of  New  York.  Neither  can  complain 
that  the  funds  are  removed  to  the  jurisdiction  of  the  state  in 

VOL.  ii.  K 


158  CASES  IN  CHANCERY. 

Benson  v.  "Woolverton. 

which  they  are  both  domiciled,  or  that  the  adjudication  of 
their  rights  is  left  to  the  judicial  tribunals  of  that  state. 

If  there  be  any  equity  whatever  in  this  bill,  it  must  rest 
upon  the  charge  of  actual  fraud.  That  charge  is  fully  denied 
by  the  answer. 

The  injunction  is  dissolved  with  costs. 


CORNELIUS  BENSON  vs.  DENNIS  "WOOLVERTON  and  others. 

Where  a  bill  filed  to  avoid  a  deed,  on  the  ground  that  it  was  never  deli- 
vered to  the  grantee,  but  was  fraudulently  and  clandestinely  taken  from 
Lis  possession,  and  the  defendants  (the  heirs  of  the  grantee)  have  no  per- 
sonal knowledge  of  the  delivery  of  the  deed,  and  can  only  answer  as  to 
their  information  and  belief,  and  the  answer  contains  no  positive  denial 
of  the  fact  which  is  distinctly  alleged  and  charged  in  the  bill,  and  there- 
fore not  evidence  in  the  defendant's  favor  upon  that  point,  the  complain- 
ant is  not  required  to  increase  the  weight  of  his  evidence  to  overcome 
the  answer. 

The  fact  of  the  possession  of  a  deed  by  the  grantee,  duly  executed  and  ac- 
knowledged by  the  grantor,  is  presumptive  evidence  of  the  delivery  of 
the  deed  at  the  date  of  the  acknowledgment.  That  presumption  is  to  be 
overcome  by  counter  evidence  of  superior  weight.  The  uncorroborated 
evidence  of  the  grantor  is  not  sufficient  for  that  purpose. 


J.  W.  Taylor,  for  complainant 
Titswortfi,  defendant. 

THE  CHANCELLOR.  The  bill  is  filed  to  avoid  a  deed,  exe- 
cuted by  the  complainant  to  Sarah  Blackburn,  dated  on  the 
seventh,  and  acknowledged  on  the  eighth  of  August,  1860. 
The  execution  and  acknowledgment  of  the  deed  are  admitted. 
The  sole  question  in  the  cause  is,  whether  it  was  delivered  to 
the  grantee.  The  bill  alleges  that  it  was  not  intended  or 
agreed  to  be  delivered  until  the  death  of  the  grantor ;  that 
it  was  never  delivered,  but  was  retained  by  him  until  it  was 
clandestinely  and  fraudulently  taken  from  his  possession  by 
the  grautee.  The  deed  was  in  possession  of  the  grantee,  and 


OCTOBER  TERM,  1862.  159 


Benson  v.  Woolverton. 


was  sent  by  her  to  the  office  of  the  register  to  be  recorded  on 
the  fifth  of  April,  I860.  The  grantee  died  on  the  thirtieth 
of  April,  I860.  The  bill  is  filed  against  her  heirs. 

The  defendants  have  no  personal  knowledge  of  the  delivery 
of  the  deed,  and  can  only  answer  as  to  their  information  and 
belief.  The  answer  contains  no  positive  denial  of  the  fact, 
which  is  distinctly  alleged  and  charged  in  the  bill,  that  the 
deed  was  clandestinely  and  fraudulently  taken  from  the  pos- 
session of  the  complainant.  It  is  not  evidence  in  the  defend- 
ant's favor  upon  that  point.  The  complainant  is  not  required 
to  increase  the  weight  of  his  evidence  to  overcome  the  answer. 
3  Greenl.  Ev.,  §  287. 

The  case  depends  solely  upon  the  sufficiency  of  the  evidence 
to  sustain  the  allegation  of  the  bill.  The  truth  of  the  chanre, 

O  .      T  o     7 

that  the  deed  was  not  delivered,  but  was  fraudulently  taken 
by  the  grantee  from  the  possession  of  the  complainants,  rests 
exclusively  upon  the  unsupported  testimony  of  the  complain- 
ant himself.  He  is  not  corroborated  upon  this  point  by  the 
testimony  of  a  single  witness,  nor  by  any  decisive  or  signifi- 
cant fact  or  circumstance  disclosed  by  the  testimony.  The 
question  then  is  distinctly  presented,  whether  a  deed  duly 
executed  and  acknowledged,  and  in  the  possession  of  the 
grantee  in  her  lifetime,  can  after  the  death  of  the  grantee, 
be  set  aside  as  invalid  upon  the  uncorroborated  testimony  of 
the  grantor  that  it  was  never  delivered.  I  have  no  hesitation 
in  saying  that  it  ought  not  to  be  done.  The  statute  has  made 
the  complainant  a  competent  witness  in  his  own  behalf.  But 
he  is  an  interested  witness,  and  his  testimony  is  not  entitled 
to  the  weight  of  impartial  testimony.  The  manifest  policy 
of  the  statute  moreover  is,  that  the  witness  should  only  be 
heard  or  credited  where  he  can  be  confronted  with  the  testi- 
mony of  the  opposite  party.  Under  the  facts  of  this  case, 
the  complainant  is  not  excluded  by  the  terms  of  the  statute 
from  being  a  witness.  There  is  therefore,  it  is  conceded, 
some  evidence  in  support  of  the  complainant's  case. 

But  the  fact  of  the  possession  of  a  deed  by  the  grantee, 
duly  executed  and  acknowledged  by  the  grantor,  is  presump- 


1GO  CASES  IN  CHANCERY. 

Benson  r.  Woolverton. 

tive  evidence  of  the  delivery  of  the  deed  at  the  date  of  the 
acknowledgment.  That  presumption  is  to  be  overcome  by 
counter  evidence  of  superior  weight.  The  uncorroborated 
testimony  of  the  grantor  is  not  sufficient  for  that  purpose. 
Upon  a  bill  filed  for  the  foreclosure  of  a  bond  and  mortgage, 
the  uncorroborated  testimony  of  the  defendant  in  support  of 
his  answer,  that  the  mortgage  was  never  delivered,  or  that  it 
had  been  paid  and  satisfied,  will  not  avail  to  defeat  a  re- 
covery. The  possession  of  the  mortgage  by  the  mortgagee, 
duly  executed  and  acknowledged,  is  presumptive  evidence 
not  only  that  it  was  duly  delivered,  but  that  it  remains  a 
valid  and  subsisting  encumbrance.  These  presumptions  can- 
not be  overcome  by  the  unaided  testimony  of  an  interested 
party.  There  are  usually  circumstances  clustering  around  a 
transaction  which  shed  light  upon  its  real  character,  and 
which  serve  as  reliable  guides  to  the  truth.  But  after  the 
most  careful  examination  of  the  evidence  in  this  cause,  I  find 
no  one  material  circumstance  corroborative  of  the  complain- 
ant's evidence  upon  the  material  point  at  issue.  If  the  fact, 
that  the  complainant  should  have  agreed  to  give  a  title  for 
the  house  and  lot  for  one  year's  service  of  the  grantee  as 
housekeeper  seems  improbable,  the  agreement  which  he 
admits  he  did  make  is  but  little  less  extraordinary  on  his 
part,  and  more  remarkable  on  the  part  of  the  grantee. 

If  the  fact  that  the  deed  was  not  immediately  placed  upon 
record  be  at  all  significant,  it  is  naturally  accounted  for ;  and 
the  evidence  shows  that  it  was  not  sent  to  be  recorded  until 
the  grantor  proposed,  in  violation  of  his  admitted  contract, 
to  sell  the  property.  If  it  be  true  that  the  complainant,  a 
few  hours  before  the  death  of  the  grantee,  charged  her  with 
having  taken  the  deed  improperly  from  his  possession,  the 
evidence  shows  that  she  instantly  repelled  the  charge,  and 
claimed  that  the  title  was  rightfully  in  herself. 

If,  therefore,  there  was  no  counter  testimony  whatever  on 
the  part  of  the  defendants,  I  should  unhesitatingly  declare 
that  the  complainant's  case  is  not  sustained  by  the  evidence. 

But  there  is  positive  testimony,  of  the  most  decisive  cha- 


OCTOBER  TERM,  1862. 


161 


Benson  v.  Woolverton. 


racter,  utterly  repugnant  to  the  case  made  by  the  complain- 
ant. The  bill  alleges,  and  the  complainant  testifies  that  the 
deed  was  executed  and  acknowledged  upon  an  agreement, 
lhat  if  the  grantee  would  continue  in  his  service,  and  act  as 
his  housekeeper  during  his  live,  he  would  support  and  main- 
tain her,  and  on  his  death  leave  her  a  deed  of  conveyance  for 
the  land.  There  is  direct  proof  by  a  witness,  who  alleges 
that  he  was  present  at  the  contract,  that  the  agreement  was 
that  the  deed  should  be  executed  and  delivered  if  the  grantee 
remained  in  the  complainant's  employ  for  one  year.  It  was 
executed  and  acknowledged  at  the  expiration  of  the  year, 
and  was  soon  afterwards  seen  in  the  possession  of  the  grantee. 
There  is  also  direct  evidence  that  the  complainant,  before  the 
expiration  of  the  year,  declared  that  he  intended  to  deliver 
the  deed  immediately,  and  that  after  the  year  expired  he  re- 
peatedly declared  that  the  deed  had  been  delivered.  It  is 
true  that  these  witnesses,  with  a  single  exception,  are  inte- 
rested in  the  result  of  the  suit.  But  the  complainant's  evi- 
dence is  open  to  the  same  objection.  Nor  do  I  perceive  that 
there  is  a  single  objection  to  the  credibility  of  these  witnesses 
which  may  not  be  urged  with  at  least  equal  force  against  the 
credibility  of  the  complainant.  The  case  is  doubtless  charac- 
terized by  very  peculiar  features,  which  affect  to  some  degree 
the  moral  status  and  credibility  of  the  complainant  and  of 
some  of  the  witnesses  on  the  part  of  the  defendants,  but  they 
cannot  affect  the  result  of  the  case. 

The  parties  are  both  dead,  and  nothing  can  be  gained  to 
the  cause  of  truth  and  justice  by  the  further  discussion  of  the 
circumstances  which  have  given  rise  to  the  controversy. 

The  injunction  must  be  dissolved  and  the  bill  dismissed. 


162  CASES  IN  CHANCERY. 


Mount  r.  Mount. 


MARY  ANN  MOUNT  vs.  ALFRED  "W.  MOUNT. 

On  a  petition  for  divorce,  filed  by  a  wife  against  her  husband,  on  the 
ground  of  adultery,  when  the  only  proof  of  the  guilt  of  the  husband  is, 
that  within  six  months  after  his  marriage,  he  was  affected  with  venereal 
disease,  the  evidence  is  not  of  itself  sufficient  to  justify  a  decree. 

When  the  facts  relied  on  are  susceptible  of  two  or  more  interpretations, 
any  one  of  which  is  consistent  with  the  defendant's  innocence,  they  will 
not  be  sufficient  to  establish  guilt.  Though  it  is  not  necessary  to  prove 
the  direct  fact  of  adultery,  it  is  necessary  to  show  that  adultery  ia  the 
only  necessary  conclusion  from  the  facts  of  the  case. 

When  the  defendant  was  examined  as  a  witness,  and  denied  that  since  his 
marriage  he  has  had  connection  with  any  other  woman  than  his  wife, 
although  his  evidence  is  not  entitled  to  the  weight  due  to  the  testimony 
of  a  fair  and  impartial  witness,  it  is  nevertheless  entitled  to  some  weight, 
and  in  a  case  of  this  kind  is  at  least  sufficient  to  overcome  the  effect  of 
the  evidence  on  the  part  of  the  complainant. 


THE  CHANCELLOR.  The  parties  were  married  on  the  fifth 
of  May,  1861.  On  the  tenth  of  March,  1862,  the  wife  filed 
her  petition  for  divorce  on  the  ground  of  adultery.  The  alle- 
gation of  the  petition  is,  that  the  husband,  during  the  months 
of  October  and  November,  1861,  and  at  other  times,  commit- 
ted adultery  with  divers  females,  whose  names  are  unknown 
to  the  petitioner.  The  proof  is,  that  the  defendant,  about 
the  month  of  October,  1861,  within  six  months  after  his  mar- 
riage, was  affected  with  the  venereal  disease.  The  case  rests 
solely  upon  this  evidence.  There  is  no  evidence  as  to  the 
previous  relations  of  the  parties,  or  as  to  the  habits,  charac- 
ter, or  conduct  of  the  defendant.  The  wife  testifies  that  she 
saw  nothing  to  excite  her  suspicion  in  regard  to  his  conduct 
about  the  time  of  the  alleged  adultery,  nor  does  she  allege 
that  she  did  so  at  any  other  time  after  the  marriage.  She 
further  states  that  they  did  not  live  together  at  that  time. 
The  first  suspicion  that  appears  to  have  been  entertained  by 
the  wife  of  her  husband's  criminal  conduct  resulted  from  the 
voluntary  statement,  made  by  the  husband  to  her  mother, 
that  he  was  suffering  from  the  disease.  It  appears  further, 
from  the  evidence,  that  in  October,  1861,  the  wife  was  appa- 


OCTOBER  TERM,  1862.  163 


Mount  v.  Mount. 


rently  free  from  disease.  The  husband  has  been  examined 
as  a  witness,  and  denies  most  explicitly  that  he  has  been 
guilty  of  adultery.  I  do  not  think  the  evidence  sufficiently 
strong  to  justify  a  decree  for  divorce. 

The  fact  that  the  husband,  long  after  marriage,  is  infected 
with  the  venereal  disease,  has  been  held  sufficient  prima  facie 
proof  of  adultery.  Popkin  v.  Popkin,  1  Hagg.  EC.  R.  765, 
note  to  the  case  of  Durant  v.  Durant;  Johnson  v.  Johnson, 
14  Wend.  637;  North  v.  North,  5  Mass.  320;  2  Greenl. 
JEe.  44. 

In  the  case  of  Cottett  v.  Cottett,  where  it  was  attempted  to 
establish  adultery  against  the  husband  by  showing  that  the 
wife  was  suffering  under  a  recent  infection,  Dr.  Lushington 
said  :  "it  is  impossible  to  lay  down  any  general  inflexible  rule, 
for  each  case  must  depend  upon  its  own  circumstances,  and 
it  is  scarcely  possible  to  conceive  a  case  without  some  cir- 
cumstances which  would  assist  the  court  in  coining  to  a  con- 
clusion." On  the  hearing  of  the  same  cause  by  the  judicial 
committee,  it  was  held  that  the  adultery  of  the  husband  must 
not  be  inferred  from  the  mere  fact  of  the  wife's  being  tainted 
with  the  venereal  disease,  although  she  herself  is  not  even 
suspected  of  adultery,  inasmuch  as  the  existence  of  such  a 
disease  in  the  wife  is  consistent  with  the  adultery  of  the  hus- 
band, with  her  own  adultery,  and  with  accidental  communi- 
cation of  it."  The  converse  of  the  proposition  would  seem 
to  be  equally  true,  that  the  existence  of  the  disease  in  the 
husband  is  consistent  with  the  adultery  of  the  husband,  with 
its  having  been  communicated  by  the  wife,  and  with  acci- 
dental communication  of  it.  Bishop  on  Marriage  and  Di- 
vorce, §  440. 

When  the  facts  relied  upon  are  capable  of  two  or  more 
interpretations,  any  one  of  which  is  consistent  with  the  de- 
fendant's innocence,  they  will  not  be  sufficient  to  establish 
guilt.  Though  it  is  not  necessary  to  prove  the  direct  fact  of 
adultery,  it  is  necessary  to  show  that  adultery  is  the  only 
necessary  conclusion  from  the  facts  of  the  case.  Ferguson  v. 
Ferguson,  3  Sandf.  Sup.  Co.  R.  307. 


164  CASES  IN  CHANCERY. 

Mount  v.  Mount 

Proceeding,  as  I  do,  upon  the  assumption  of  the  entire  in- 
nocence of  the  wife,  is  the  guilt  of  the  husband  the  necessary 
conclusion  from  the  facts  of  the  case  ?  The  parties  had  been 
married  less  than  six  months  when  the  disease  developed 
itself.  The  wife  had  been  previously  married.  How  long 
she  had  been  a  widow  does  not  appear.  Is  it  impossible  or 
highly  improbable  that  the  wife  may  have  been  infected  with 
the  disease  during  her  former  marriage,  and  that  the  disease 
was  still  lurking  in  her  blood  ?  It  is  proved  that  the  wife 
voluntarily  submitted  herself  to  a  medical  examination,  and 
the  physician  testifies  that  he  discovered  no  traces  of  the 
disease.  But  it  is  worthy  of  remark  that  she  submitted  her- 
self to  the  examination  under  the  pretext  that  she  had  fallen 
from  a  horse,  and  it  was  not  until  afterwards  that  the  physi- 
cian was  informed  of  the  real  object  of  the  examination. 
The  investigation  does  not  appear  to  have  been  made  at  all 
in  reference  to  the  existence  of  the  disease  in  question.  Un- 
der the  circumstances,  may  not  the  symptoms  of  the  disease 
have  escaped  the  attention  of  the  physician,  or  may  they  not 
have  been  so  far  suppressed  as  not  to  be  perceptible  ?  Is  the 
evidence  sufficient  to  prove  the  nonexistence  of  the  disease 
so  fully  as  to  establish  the  guilt  of  the  defendant. 

As  already  said,  there  are  no  other  circumstances  in  the 
case  to  aid  the  court  in  arriving  at  a  correct  conclusion.  No 
evidence  touching  the  husband's  character  or  habits.  It  is 
not  proven  that  the  husband  kept  improper  company  or  visited 
disreputable  places  of  resort.  It  is  not  shown  that  he  ever 
visited  or  associated  with  any  other  woman  than  the  com- 
plainant. The  evidence  is  not  in  itself  sufficient  to  justify  a 
decree.  But  admitting  that  the  complainant's  evidence  is 
sufficient  prima  facie  to  raise  a  presumption  of  adultery 
against  the  husband,  the  case  does  not  rest  upon  this  evidence 
alone.  The  defendant  has  been  examined.  He  testifies  ex- 
plicitly that  since  his  marriage  he  has  had  connection  with 
no  other  woman  than  his  wife.  "Without  attaching  undue 
importance  to  the  evidence  of  the  defendant,  admitting  that 
it  is  not  entitled  to  the  weight  due  to  the  testimony  of  a  fair 


OCTOBER  TERM,  1862. 


165 


Mount  v.  Mount. 


and  impartial  witness,  it  is  nevertheless  entitled  to  some 
weight,  especially  in  connection  with  his  own  voluntary  state- 
ment to  the  mother  of  the  complainant,  that  he  was  infected 
with  the  disease.  Why  should  he  have  made  that  statement 
if  he  was  really  guilty  of  adultery  ?  His  defending  the  cause 
is  evidence  that  it  was  not  made  by  collusion.  The  explicit 
testimony  of  the  defendant  is  at  least  sufficient  to  overcome 
the  effect  of  evidence  on  the  part  of  the  complainant. 

I   shall   decree   for   the   defendant,  but  without   costs  as 
against  the  complainant. 


CASES 


ADJUDGED  IN 


THE  PREROGATIVE  COURT 


OF   THE 


STATE  OF  NEW  JERSEY, 


FROM 


FEBRUARY  TERM,  189,  TO  OCTOBER  TERM, 


BENJAMIN  WILLIAMSON,  ESQ.,  ORDINARY. 


PETER  S.  CONOVER,  appellant,  vs.  ALFRED  WALLING  and 
others,  respondents. 

A  person  to  whom  property  is  struck  off  at  a  sale  made  by  commissioners 
appointed  by  the  Orphans  Court  in  proceeding  for  partition  acquires  a 
right  which  the  court  is  bound  to  protect.  Such  bidder  has  a  right  to 
have  a  deed  for  the  property,  unless  for  good  cause  the  sale  be  set  aside. 

If  the  court,  without  good  cause,  set  aside  the  sale,  such  bidder  is  a  party 
aggrieved  by  an  order  of  the  Orphans  Court,  and  as  such  is  entitled,  by 
the  constitution  of  this  state,  to  an  appeal  to  the  Prerogative  Court. 


William  L.  Dayton,  for  appellant. 
P.  Vredenburgh,  for  respondents. 

THE  ORDINARY.  An  application  having  been  made  to  the 
Orphans  Court  of  the  county  of  Monmouth  for  a  partition 
of  the  real  estate  late  of  John  M.  Holmes,  deceased,  under 
the  act  entitled  "  an  act  for  the  more  easy  partition  of  lands 
held  by  coparceners,  joint  tenants,  and  tenants  in  common," 
such  proceedings  were  had  therein,  under  and  in  pursuance 

167 


168  PREROGATIVE  COURT. 

Conover  t>.  Walling. 

of  the  said  act,  that  the  respondents,  who  were  the  commis- 
sioners appointed  by  the  court,  were  ordered  to  make  sale  of 
the  said  real  estate. 

The  land  was  sold  in  two  parcels  by  the  commissioners,  one 
of  which  was  struck  off  to  Daniel  H.  Ellis,  for  the  sum  of 
$18,375,  and  the  other  to  Peter  S.  Conover,  the  appellant, 
for  §12,500.  The  appellant  signed  the  conditions  of  sale,  and 
paid  to  the  commissioners  ten  per  cent.,  as  required. 

The  commissioners  made  their  report  of  sales  to  the  Or- 
phans Court.  Objections  to  confirming  the  sales  were  made, 
on  behalf  of  parties  interested,  and  after  hearing  the  appel- 
lant and  the  parties  objecting,  and  their  evidence,  proof,  and 
allegations,  the  said  Orphans  Court,  at  the  term  of  December 
last,  did  order,  adjudge,  and  decree  that  so  much  of  said 
report  of  sales  as  applied  to  the  part  sold  to  Daniel  H.  Ellis 
should  be  confirmed,  and  that  so  much  thereof  as  applied  to 
the  part  sold  to  the  appellant  should  not  be  confirmed,  but 
set  aside  and  for  nothing  holden. 

From  this  order  of  the  Orphans  Court  Peter  S.  Conover 
appealed  to  this  court. 

A  motion  is  made  to  dismiss  this  appeal,  on  two  grounds- — 
1,  that  the  appellant  is  not  a  party  aggrieved,  and  therefore 
has  no  right  to  appeal ;  2,  that  the  order  is  not  one  from 
which  an  appeal  can  be  taken. 

The  right  of  appeal  from  an  order  or  decree  of  the  Orphans 
Court  to  the  Prerogative  Court  is  given  by  the  constitution  in 
these  words:  "All  persons  aggrieved  by  any  order,  sentence, 
or  decree  of  the  Orphans  Court  may  appeal  from  the  same,  or 
from  any  part  thereof,  to  the  Prerogative  Court;  but  such 
order,  sentence,  or  decree  shall  not  be  removed  into  the  Su- 
preme Court  or  Circuit  Court  if  the  subject  matter  thereof  be 
within  the  jurisdiction  of  the  Orphans  Court." 

It  is  insisted  that  the  appellant  has  no  rights  which  were 
affected  by  this  decree ;  that  he  has  no  interest  in  the  property, 
and  that  he  is  in  no  wise  aggrieved  by  the  order  of  the  Or- 
phans Court.  That  the  commissioners  were  the  mere  auc- 
tioneers of  the  court,  commissioned  by  the  court  to  ascertain 


MAY  TERM,  1S52.  169 

Conover  v.  Walling. 

who  would  give  the  highest  price'  for  the  properly,  and  then 
to  make  report  of  that  fact ;  that  the  appellant  made  his  offer, 
and  agreed  to  take  the  property  at  a  certain  price,  provided 
the  court  would  consent. 

If  this  be  the  correct  view  of  these  sales,  and  the  court 
should  declare  such  to  be  the  law,  it  will  tend  greatly  to  em- 
barrass the  proceedings  under  this  statute.  If  a  person  mak- 
ing the  highest  bid,  and  to  whom  the  property  is  bona  fide 
struck  off,  acquires  no  rights ;  and  if  his  bid  is  to  be  con- 
sidered a  mere  offer  by  which  he  is  bound,  but  which  at  a 
future  period  is  to  be  accepted  or  rejected  by  the  court  at 
their  mere  will  and  pleasure,  the  natural  tendency  will  be  to 
discourage  bidders,  and  depreciate  the  price  of  property  at 
these  sales.  If  it  is  not  a  legal  discretion  the  court  is  to 
exercise,  but  if  it  is  to  look  upon  the  bid  merely  as  an  offer 
made  for  the  property,  why  is  not  the  court  bound  at  all 
times  to  set  the  sale  aside,  as  a  matter  of  course,  if  at  any 
time  before  approval  a  better  offer  is  made  for  the  property? 

If  the  court  stands  merely  in  the  place  of,  and  representing 
the  owners,  and  in  no  other  capacity,  as  was  insisted  upon  at 
the  argument,  no  one  could  complain  of  any  unfairness  in 
their  pursuing  such  a  course,  and  in  fact  their  duty  to  the 
owners  of  the  property  would  require  them  to  do  it. 

These  sales  are  made  universally  upon  certain  conditions, 
dictated  by  the  commissioners  under  the  advice  and  authority 
of  the  Orphans  Court.  One  of  the  conditions  always  is, 
and  it  was  one  of  this  sale,  that  the  highest  bidder  shall  be 
the  purchaser.  He  acquires,  when  the  property  is  struck  off 
to  him,  and  he  is  declared  the  purchaser  by  the  commission- 
ers, a  right  not  complete  but  inchoate;  and  that  right  is  to 
have  the  court  approve  the  sale,  and  to  have  a  deed  for  the 
property,  unless  for  good  cause  the  sale  should  be  set  aside. 
If  this  right  exists,  and  the  court  without  good  cause  set 
aside  the  sale,  and  by  their  order  and  decree  deny  him  this, 
right,  he  is  a  person  aggrieved  by  an  order  of  the  Orphans 
Court,  and  by  the  constitution  has  an  appeal  to  the  Preroga- 
tive Court.  If  he  cannot  strictly  be  considered  a  party  to 


170  PREROGATIVE  COURT. 

Conover  v.  Walling. 

the  proceeding  in  court,  still  he  is  a  person  aggrieved,  and  as 
such  has  a  right  to  appeal. 

When,  in  analogous  cases,  a  right  of  appeal  has  been  given, 
that  right  has  been  so  extended.  It  is  not  necessary  that  the 
person  who  appeals  should  be  actually  a  party  to  the  record, 
provided  lie  has  an  interest  in  the  question  which  may  be 
affected  by  the  decree  or  order  appealed  from.  And  again, 
"It  has  also  been  determined  by  the  House  of  Lords  that  a 
purchaser  under  a  decree,  though  no  party  to  the  suit,  may 
appeal  from  an  order  setting  aside  the  bidding,  and  ordering 
a  new  sale  before  the  master."  3  Dan.  Ch.  P.  99,  and  cases 
there  referred  to. 

The  order  of  the  Orphans  Court  determined  all  the  rights 
of  this  appellant,  and  if  he  cannot  take  this  appeal  he  is 
without  remedy. 

But  it  was  further  insisted  that  the  matter  determined  upon 
by  the  Orphans  Court  was  one  submitted  entirely  to  their 
discretion,  and  cannot  be  reviewed ;  that  the  statute  made  it 
a  matter  of  conscience  with  the  individual  members  of  the 
court,  and  requires  the  court  to  approve  the  sale  before  it  is 
valid.  The  provision  of -the  statute,  to  be  found  on  page 
106,  §  17,  is,  "  That  if  the  court,  to  which  the  report  of  the 
sale  of  such  land  or  real  estate  shall  be  made  as  aforesaid, 
shall  approve  of  such  sale,  it  shall  confirm  the  same  as  valid 
and  effectual  in  law." 

But  is  not  the  court  bound  by  law  and  in  conscience  to  ap- 
prove it,  if  there  is  no  good  cause  for  refusing?  And  if 
they  mistake  the  law  in  the  discharge  of  their  duty  in  this 
respect,  has  the  party  aggrieved  no  redress  ?  They  ought  to 
approve  it,  unless  there  exists  some  good  cause  for  their  re- 
fusing. It  is  not  an  arbitrary  exercise  of  power  committed 
to  them,  but  it  is  a  matter  of  judgment  and  of  legal  discre- 
tion. 

If  the  word  "  approve  "  was  not  in  the  statute  they  ought 
not  to  confirm  the  sale,  if  in  their  judgment  the  proceedings 
had  been  illegal,  or  if  through  any  fraud,  mistake,  or  acci- 
dent the  property  had  not  been  fairly  exposed  to  sale. 


MAY  TERM,  1852. 


171 


Conover  v.  Walling. 


I  presume  sucli  has  been  the  case  in  the  sale  we  are  consid- 
ering. It  appears  that  the  Orphans  Court  had  evidence  and 
proof  before  them,  upon  which  their  judgment, was  satisfied, 
that  the  sale  had  not  been  conducted  according  to  law,  and 
was  accordingly  set  aside.  But  this  appellant  says  they  erred 
in  judgment;  that  he  is  aggrieved  by  it,  and  that  the  consti- 
tution secures  to  him  the  right  of  appeal. 

We  are  not  without  abundant  authority  in  analogous  cases 
upon  this  point. 

In  the  case  of  Collier,  appellant,  and  Whipple,  appellee,  13 
Wendell  224,  a  master  sold  mortgaged  premises,  and  executed 
a  deed.  According  to  the  then  practice  in  New  York,  upon  the 
master's  filing  his  report  of  sale,  an  order  for  confirmation 
nisi  was  entered.  A  judgment  creditor  petitioned  the  Chan- 
cellor for  a  resale,  and  it  was  ordered.  An  appeal  was  taken 
from  the  order  of  the  Chancellor,  and  the  right  of  appeal  not 
questioned. 

In  the  case  of  Tripp,  appellant,  and  Cook,  appellee,  26 
Wendell  143,  a  resale  was  ordered  by  the  Chancellor.  On 
the  appeal  from  this  order  it  was  insisted  it  was  a  matter 
altogether  in  the  discretion  of  the  court,  and  this  point  was 
decided  by  the  court.  The  Chancellor's  order  was  reversed. 

The  case  of  Delaplaine  v.  Lawrence,  administrator,  and 
others,  10  Paige  Ch.  R.  602,  is  a  case  directly  in  point.  The 
administrator  sold  certain  lots  under  the  order  of  the  surro- 
gate. When  the  report  of  sales  came  in  he  confirmed  the 
sale  of  part  of  the  lots,  and  the  residue  he  ordered  to  be  put 
up  again  and  sold.  C.  B.  Lawrence,  one  of  the  heirs,  applied 
for  a  resale,  and  gave  security  that  the  property  should  pro- 
duce a  certain  amount  specified.  Delaplaine,  who  was  the 
purchaser,  appealed  to  the  Court  of  Chancery,  to  which  court 
the  appeal  was  given  by  the  New  York  statute.  The  Chan- 
cellor says :  "  In  sales  made  by  masters  under  decrees  and 
orders  of  this  court,  the  purchasers  who  have  bid  off  the 
property,  and  paid  their  deposits  in  good  faith,  are  con- 
sidered as  having  acquired  inchoate  rights,  which  entitle 
them  to  a  hearing  upon  the  question  whether  the  sales  shall 


172  PREROGATIVE  COURT. 

Conover  v.  Walling. 

be  set  aside.  And  if  the  court  errs  by  setting  aside  the  sale 
improperly,  they  have  a  right  to  carry  the  question  by  appeal 
to  a  higher  tribunal."  See  2  R.  S.  610,  §  104. 

But  it  was  asked  by  the  counsel,  on  the  argument,  what 
decree  will  this  court  make'  in  the  premises,  should  it  come  to 
the  conclusion  that  the  Orphans  Court  erred  ?  Will  it  order 
the  court  to  approve  what  they  conscientiously  declare  they 
cannot  approve  ?  No  deed  can  be  given — no  title  be  made 
by  this  court ;  the  sale  must  first  be  approved  by  the  Orphans 
Court,  and  this  they  refuse.  Will  this  court  force  their  con- 
sciences ? 

I  really  do  not  see  the  slightest  difficulty  of  the  Orphans 
Court  carrying  into  effect  the  decree  of  this  court,  be  it  what 
it  may,  without  any  compunctions  or  violations  of  conscience. 
They  have  conscientiously  discharged  their  duty ;  they  have 
pronounced  their  judgment  upon  the  law  and  the  facts  sub- 
mitted to  them;  they  are  ready  and  willing  to  carry  that 
judgment  into  effect.  But  the  law  of  the  land  interposes; 
their  judgment  is  appealed  from;  the  constitution  now  sub- 
stitutes the  judgment  of  this  court  in  the  place  of  theirs;  and 
when  this  court  shall  pronounce  its  judgment,  if  it  differs  from 
theirs,  by  the  law  it  supersedes  their  judgment,  and  it  becomes 
obligatory  on  their  consciences  to  carry  the  judgment  of  this 
court  into  effect  in  the  stead  of  their  own.  The  decree  of 
this  court  will  be,  that,  according  to  the  law,  the  Orphans 
Court  ought  to  approve  the  sale  of  the  commissioners,  order 
it  confirmed,  and  a  deed  to  be  given  to  the  purchaser.  It 
will  be  an  approval  which  they  give  under  the  directions  of  a 
higher  tribunal,  and  for  which  that  tribunal  is  responsible, 
and  not  they.  All  that  court  will  have  to  do  will  be  to  carry 
the  decree  of  this  court  into  effect,  and  I  do  not  see  but  that 
they  can  do  it  without  any  conscientious  scruples.  The  pro- 
ceedings will  have  been  all  according  to  law,  and  the  court 
belgw  will  be  called  upon  simply  to  discharge  its  duty. 

The  motion  to  dismiss  the  appeal  is  denied. 

CITED  in  Clow  v.  Taylor,  12  C.  E.  Gr.  418. 


OCTOBER  TERM,  1852.  173 


Conover  v.  Walling. 


PETER  S.  CONOVER,  appellant,  and  ALFRED  WALLING  and 
others,  commissioners,  &c.,  respondents. 

Where  objection  is  made  to  a  sale  by  commissioners,  by  parties  interested  in 
proceedings  for  partition  before  the  Orphans  Court,  the  matter  should  be 
brought  before  such  court  by  petition. 

It  is  not  proper  to  concert  with  an  auctioneer  a  private  signal  denoting  a 
bid  at  a  sale  of  property  by  public  auction.  Such  a  contrivance  gives 
an  advantage  to  one  person  over  the  other  fair  and  open  bidders  at  the 
sale. 

The  mere  fact  that  more  is  offered  for  the  property  sold  at  auction  than  it 
was  cried  off  for,  is  no  justification  for  a  court  refusing  to  confirm  the 
sale.  The  practice  of  the  English  courts,  in  opening  bids,  has  not  been 
adopted  by  the  courts  of  this  state. 

It  is  the  custom  in  New  Jersey,  at  public  sales,  where  a  bid  is  fairly  claimed 
by  two  or  more  persons,  to  put  the  property  up  again  at  the  price  bid, 
and  as  at  the  bid  of  such  one  of  the  competitors  as  the  auctioneer  may 
declare  entitled  to  it. 

Where  a  mistake  occurs  in  the  biddings,  which  is  brought  to  the  knowledge 
of  the  commissioners,  and  they  do  not  correct  it  by  having  the  property 
again  set  up  in  the  ordinary  way,  and  it  appears  that  a  less  price  was 
obtained  than  otherwise  would  have  been  offered,  the  sale  should  be  set 
aside. 

A  fair  bidder  at  such  sale,  to  whom  the  property  is  struck  off,  being  an  in- 
nocent party,  ought  to  be  put  to  no  expense  in  the  proceedings  to  set 
aside  the  sale,  either  in  the  Orphans  Court  or  on  the  appeal  to  the  Pre- 
rogative Court. 

On  the  second  day  of  September,  A.  D.  1851,  G.  P.  Cono- 
ver and  Sarah  H.  Conover  made  their  application,  by  petition, 
to  the  Orphans  Court  of  the  county  of  Monmouth  for  a  divi- 
sion of  real  estate,  of  which  they  and  others,  named  in  said 
petition,  were  tenants  in  common. 

The  commissioners,  Alfred  Walling,  John  C.  Conover,  and 
William  Statsen,  having  reported  that  a  partition  of  the  lands 
could  not  be  made  without  great  prejudice  to  the  owners 
thereof,  the  court  ordered  a  sale  of  the  said  real  estate. 

On  the  second  of  December,  A.  D.  1851,  the  commissioners 

VOL.  ii.  L 


174  PREROGATIVE  COURT. 

Conover  v.  Walling. 

made  their  report  of  sales  to  the  court  in  the  usual  form,  and 
among  other  matters,  stating  that  they  had  sold  the  land  in 
two  tracts.  "Tract  the  1st,  No.  1,  being  the  westerly  half 
of  said  real  estate,  containing  one  hundred  and  fifty-one  acres, 
more  or  less,  situate  in  the  township  of  Atlantic,  in  said 
county  of  Monmouth,  bounded  on  the  north  by  lands  of  H. 
P.  Conover  and  John  S.  Ely,  on  the  east  by  lands  of  Daniel 
Bray  and  the  other  half  of  said  real  estate  sold  Peter  S. 
Conover,  on  the  south  by  lands  a  part  of  the  other  half 
of  said  real  estate  sold  Peter  S.  Conover  by  said  com- 
missioners and  lands  of  Polhemus  Smock,  on  the  west 
by  lands  of  Gilbert  H.  Vanmater,  was  struck  off  and 
sold  to  Daniel  H.  Ellis  for  the  sum  of  eighteen  thousand 
three  hundred  and  seventy-five  dollars  ($18,375).  Tract  the 
2d,  No.  2,  being  the  easterly  half  of  said  real  estate,  con- 
taining one  hundred  and  forty  acres,  more  or  less,  situate  in 
the  township  and  county  aforesaid,  bounded  on  the  north  by 
land  late  a  part,  <fcc.,  (describing  the  same)  was  struck  off 
and  sold  to  Peter  S.  Conover  for  the  sum  of  twelve  thousand 
five  hundred  dollars." 

On  the  coming  in  of  this  report,  an  application  was  made, 
on  behalf  of  the  petitioners  for  division  and  of  the  other 
owners  of  the  land,  to  disaffirm  and  disapprove  so  much  of 
said  report  as  related  to  tract  No.  2,  on  the  ground  that, 
owing  to  a  misunderstanding  on  the  part  of  the  auctioneer 
who  conducted  said  sale,  the  said  tract  sold  for  much  less 
than  it  otherwise  would  have  brought,  and  that  the  commis- 
sioners ought  not,  under  the  circumstances  of  the  case,  to  have 
acknowledged  Peter  S.  Conover  as  the  highest  bidder. 

AVitnesses  were  examined,  and  evidence  taken  before  the 
Orphans  Court,  by  which  it  appeared  that  Sarah  Holmes, 
who  was  the  owner  of  one  half  of  the  estate  ordered  to  be 
sold,  employed  Daniel  H.  E  lis  as  her  agent  to  bid  for  her  at 
the  sale,  and  authorized  him,  in  writing,  to  bid  $20,000  for 
the -first  tract,  and  $15,000  for  the  second  tract,  struck  off  to 
Conover ;  that  prior  to  the  sale,  Ellis  made  an  arrangement 


OCTOBER  TERM,  1852. 


175 


Conover  v.  Walling. 


with  Henry  W.  Wolcott,  the  auctioneer  at  the  sale,  agreeing 
upon  a  private  signal,  which  the  auctioneer  should  take  for  a 
bidding;  that  it  was  arranged  between  them  that  as  long  as 
Ellis  should  keep  his  thumb  in  his  button-hole  he  should  be 
considered  a  bidder,  and  Wolcott  should  increase  the  bid  in 
the  same  ratio  as  the  preceding  bidder;  that  the  first,  tract 
\vas  struck  off  to  Ellis,  he  being  the  highest  bidder,  and  bid- 
ding in  the  manner  arranged  as  before  mentioned;  that  Ellis 
kept  his  thumb  in  his  button-hole  during  the  whole  of  the 
bidding  for  the  second  tract,  and  was  under  the  impression 
the  auctioneer  was  bidding  for  him  under  the  arrangement; 
that  when  the  second  tract  was  struck  off  to  Conover,  Ellis 
claimed  the  bid  under  the  arrangement,  but  the  auctioneer 
declared  he  considered  that  arrangement  as  relating  only  to 
the  first  tract. 

On  the  hearing  before  the  court,  Sarah  Holmes  executed 
and  delivered  to  the  commissioners  a  bond  binding  herself  to 
bid  on  a  resale  the  sum  of  $13,500  for  the  tract  in  dispute. 

After  hearing  the  proofs  and  argument  of  counsel,  the 
court,  as  to  the  second  tract,  ordered  as  follows  :  "  And  the 
court  having  further  examined  the  said  report,  and  it  appear- 
ing to  the  court,  by  due  proof,  that  the  sale  of  the  parcel  of 
land  described  in  said  report  as  tract  the  2d,  No.  2,  and 
shown  on  said  map,  was  made  upon  due  and  legal  notice  as 
stated  in  said  report,  but  that,  owing  to  a  misunderstanding 
between  the  said  commissioners,  the  auctioneer,  and  Daniel 
H.  Ellis,  one  of  the  bidders,  as  to  whose  bid  it  was,  the  said 
tract  No.  2  was  struck  off  to  said  Peter  S.  Conover,  men- 
tioned in  said  report,  for  a  sum  much  less  than  it  otherwise 
would  have  brought,  and  that  the  said  commissioners  ought 
not  to  have  permitted  the  said  tract  No.  2  to  be  finally  struck 
off  to  the  said  Peter  S.  Conover  for  the  price  in  said  report 
named,  and  that  a  confirmation  of  said  report,  so  far  as  re- 
gards said  tract  No.  2,  would  operate  great  loss  and  injustice 
to  the  owners,  the  court  do  hereby  disapprove  and  disaffirm 
said  report  and  sale  so  far  as  relates  to  said  tract  No.  2,  and 
do  hereby  refuse  to  approve  the  same  so  far  as  relates  to  said 


176  PREROGATIVE  COURT. 

Conover  v.  Walling. 

tract  No.  2,  and  do  refuse  to  confirm  the  same  so  far  as  relates 
to  said  tract  No.  2,  and  do  order  and  direct  and  adjudge  that 
said  report  and  sale  so  far  as  regards  said  tract  No.  2,  and 
said  sale  of  tract  No.  2  to  Peter  8.  Conover,  be  and  the  same 
is  hereby  annulled,  set  aside,  and  for  nothing  holden." 

Peter  S.  Conover  appealed  from  this  order  of  the  Orphans 
Court  to  the  Prerogative  Court,  and  stated  and  submitted  to 
the  court  the  following  grounds  of  appeal : 

1st.  That  the  sale  and  report  of  said  commissioners  was  an 
entirety,  and  could  not  be  confirmed  in  part  only. 

2d.  That  it  appeared,  upon  the  hearing,  that  the  sale  to 
your  petitioner  was  for  a  full  price,  without  any  illegality  or 
fraud  or  malconduct  on  his  part  or  on  the  part  of  any  other 
person,  and  the  court  could  not,  at  its  mere  volition  and  discre- 
tion, set  the  same  aside. 

3d.  That  the  presentation  of  a  bond  in  open  court  by  Peter 
Vredenburgh,  esq.,  counsel  for  those  opposing  said  confir- 
mation in  behalf  of  Sarah  Holmes,  binding  her  to  give  for 
the  property  $1000  more  than  it  was  struck  off  at  the  first 
sale  was  illegal,  and  an  improper  interference  with  the  judg- 
ment of  the  court. 

4th.  That  the  court  decided  that  the  commissioners  should 
have  set  the  property  up  a  second  time  at  the  sale,  although 
fairly  struck  off  to  your  petitioner,  and  the  contesting  bidder 
refused  to  have  it  set  up  again  when  offered  by  the  auctioneer 
and  commissioners. 

5th.  That  the  contesting  bidder  expressly  agreed  to  leave 
to  the  auctioneer  and  commissioners,  or  one  of  them,  the 
question  who  was  entitled  to  the  bid  at  said  sale,  and  it  was 
decided  in  favor  of  your  petitioner. 

6th.  That  the  courts  in  this  state  have  no  legal  right  to 
open  biddings,  as  in  this  case,  for  a  mere  increase  in  price. 

7th.  That  the  order  of  said  court  in  refusing  to  confirm 
said  sale  should  have  likewise  made  an  order  for  further  sale 
of  said  property,  which  was  not  done.  . 

8th.  That  the  court  did  not  order  and  adjudge  that  the 


OCTOBER  TERM,  1852.  177 


Conover  v.  Wallim 


costs  and  charges  of  supporting  said  sale  should  be  paid  out 
af  said  estate,  as  it  was  bound  to  do. 

9th.  That  the  court  did  not  order  and  adjudge  that  the 
costs,  charges,  and  expenses  incurred  by  your  petitioner 
should  be  paid  out  of  said  estate,  as  it  was  bound  to  do. 

10th.  That  the  order  and  decree  is  in  other  respects  in- 
formal, erroneous,  and  illegal. 

W.  L.  Dayton,  for  appellant. 
P.  Vredenburgh,  for  respondent. 

THE  ORDINARY.  At  the  last  term  of  this  court  a  motion, 
was  made,  on  behalf  of  the  respondents,  to  dismiss  this  ap- 
peal, on  the  ground  that  the  confirmation  of  the  sale  was  a 
matter  entirely  in  the  discretion  of  the  Orphans  Court,  and 
that  an  appeal  would  not  lie  from  such  an  order  of  that  court 
as  was  made  in  this  case.  I  decided  that  the  appeal  was  pro- 
perly taken.  I  refer  to  the  opinion  then  delivered  as  part  of 
the  history  of  the  case. 

The  question  now  is,  whether  the  order  of  the  Orphans 
Court  shall  be  affirmed. 

I  notice  an  informality  in  the  proceedings  of  the  Orphans 
Court,  for  the  purpose  of  calling  attention  to  it,  that  it  may 
be  avoided  in  future  similar  proceedings. 

As  the  decrees  and  orders  of  the  court  below  are  matters 
of  review  in  this  court,  any  material  matter  or  proceeding 
upon  which  such  decrees  and  orders  are  founded  should  be  so 
certified  as  to  show  the  regularity  and  legality  of  the  impor- 
tant steps  taken  in  the  progress  of  a  case. 

There  is  nothing  upon  the  face  of  the  proceedings  sent 
here  by  the  Orphans  Court  to  show  how  the  question  arose 
before  them,  as  to  the  mistake  and  misapprehension  in  con- 
ducting the  sale,  upon  which  they  based  their  order  now  ap- 
pealed from. 

There  is  no  dispute  that  the  resale  was  asked  for  by  or  on 
behalf  of  the  owners  of  the  land,  and  was  resisted  by  Peter 
S.  Conover ;  but  this  does  not  appear  on  the  records  of  the 


178  PREROGATIVE  COURT. 

Conover  t.  Walling. 

court.  The  matter  should  have  been  brought  before  the  Or- 
phans Court  by  petition,  which  would  have  made  the  whole 
case  complete,  and  would  have  been  a  proper  foundation  for 
the  subsequent  action  of  the  court. 

The  review  of  this  order  of  the  Orphans  Court  has  em- 
barrassed me  very  much.  If  the  question  presented  was  be- 
tween Peter  S.  Conover  and  Mrs.  Holmes,  or  Peter  S.  Cono- 
ver and  Daniel  Ellis,  and  in  which  no  one  else  had  an  inter- 
est, I  should  have  no  doubt  as  to  the  law  or  equity  applicable 
to  this  controversy.  -Mrs.  Holmes  or  Mr.  Ellis  is  not  entitled 
to  the  favorable  consideration  of  the  court.  It  was  the  con- 
trivance between  Mr.  Ellis,  as  the  agent  of  Mrs.  Holmes, 
and  Mr.  "Wolcott,  the  auctioneer,  and  which  was  adopted  for 
the  purpose  and  with  the  expectation  that  Mrs.  Holmes 
would  thereby  be  enabled  to  purchase  the  proj>erty  at  a  less 
price  than  by  taking  her  chance  on  a  like  footing  with  her 
competitors  at  the  sale,  that  has  occasioned  all  the  difficulty. 

Mr.  Conover  was  an  open  and  fair  bidder  at  the  sale.  His 
conduct  is  not  impeached.  What  he  said  or  did  is  no  way 
connected  with  the  mistake  and  misapprehension  complained 
of.  The  property  was  not  struck  off  to  him  at  an  inadequate 
price.  By  his  contract  to  take  the  property  at  the  price  at 
which  it  was  struck  off  to  him,  he  acquired  rights  which  a 
court  of  justice  ought  to  protect,  as  well  as  the  rights  and 
interests  of  the  owners  of  this  property.  But  it  is  not  Mrs. 
Holmes  or  Mr.  Ellis  who  seeks  redress  for  an  injury  which 
has  been  done  them,  but  the  owners  of  the  property  ask  the 
interference  of  the  court  in  the  protection  of  their  rights.  The 
commissioners  and  auctioneer  are  the  agents  for  both  the  own- 
ers and  the  bidders,  who  are  alike  entitled  to  relief  against  an 
injury  which  has  been  done  them  by  any  mismanagement, 
fraud,  or  accident  on  the  part  of  their  agents,  provided  the 
wrong  committed  can  be  remedied  without  doing  greater  vio- 
lence to  the  rights  of  an  innocent  party. 

The  mere  fact  that  Mrs.  Holmes  now  offers  to  bid  a  thou- 
sand dollars  more  on  a  resale  of  the  property,  is  no  justifi- 
cation for  the  court's  refusing  to  confirm  the  sale.  The  prac- 


OCTOBER  TERM,  1852. 


179 


Conover  v.  Walling. 


tice  of  the  English  courts  in  opening  bids  has  not  been 
adopted  by  our  courts.  Its  tendency  has  been  considered 
prejudicial  to  judicial  sales. 

But  the  Orphans  Court  did  not  proceed  on  this  ground  in 
refusing  to  confirm  the  sale.  They  state,  in  their  order,  that 
they  refuse  to  confirm  the  sale  because,  owing  to  a  misunder- 
standing between  the  said  commissioners,  the  auctioneer,  and 
Daniel  H.  Ellis,  one  of  the  bidders,  as  to  whose  bid  it  was, 
the  land  was  struck  off  to  Peter  S.  Conover  for  a  sum  much 
less  than  it  otherwise  would  have  brought,  and  that  the  said 
commissioners  ought  not,  under  the  circumstances,  to  have 
permitted  the  laud  to  be  struck  off  to  Conover. 

Was  there  such  a  misunderstanding  as  prevented  the  pro- 
perty bringing  a  larger  price  than  it  would  otherwise  have 
brought  ? 

Did  the  commissioners  do  wrong  in  permitting  the  pro- 
perty to  be  struck  off  to  Peter  S.  Conover  ? 

If  both  these  questions  can  be  answered  in  the  affirmative, 
the  Orphans  Court  did  right  in  refusing  to  confirm  the  sale. 
For  if  the  commissioners  did  wrong  in  permitting  the  pro- 
perty to  be  struck  off  to  Conover,  and  thereby  sacrificed  the 
interest  committed  to  their  trust,  the  rights  acquired  by 
Conover  were  in  violation  of  the  rights  of  others,  and  are 
entitled  to  no  superiority.  By  the  use  of  the  term  wrong  no 
moral  guilt  is  imputed — no  actual  fraud — but  such  indiscretion 
and  want  of  prudence  as  worked  an  injury,  and  ought  to 
have  been  avoided. 

That  there  was  a  misunderstanding  between  the  auctioneer 
and  Mr.  Ellis,  who  was  a  bidder,  is  not  disputed.  Prior  to 
the  sale,  Ellis  saw  the  auctioneer,  and  told  him  he  intended 
to  bid  for  the  proj>erty ;  that  during  the  bidding  he  would 
put  his  thumb  in  the  button-hole  of  his  coat,  and  while  it  re- 
mained there  the  auctioneer  should  continue  bidding  for  him, 
advancing  each  bid  in  the  ratio  or  proportion  of  the  imme- 
diate preceding  competitor's  bid.  To  this  the  auctioneer 
assented.  The  first  tract  was  set  up.  Ellis  bid  for  it  in  the 
manner  agreed  upon.  His  bid  was  taken  accordingly  by  the 


180  PREROGATIVE  COURT. 

Conover  ».  Walling. 

auctioneer,  and  the  first  tract  was  struck  off  to  him  for  the 
sura  of  $18,375. 

The  second  tract,  the  one  in  dispute,  was  then  set  up.  Ellis 
stood  a  short  distance  from  the  auctioneer1— immediately  in 
front  and  in  view  of  him — continuing  the  signal  which  had 
been  proposed  by  Ellis,  and  which  the*  auctioneer  had  agreed 
to  take  for  his  bidding.  The  auctioneer  struck  off  the  pro- 
perty to  Peter  S.  Conover  for  $12,500.  Ellis  immediately 
claimed  the  bid. 

There  was  no  dispute  as  to  Ellis  having  given  the  signal, 
and  it  is  rather  singular  that  the  auctioneer  should  have  made 
the  mistake  he  did,  and  that  after  committing  a  mistake  for 
which  he  was  entirely  to  blame,  should  have  persisted  in  de- 
claring Mr.  Conover  the  bidder. 

Now  how  does  the  auctioneer  account  for  the  mistake? 
He  says  he  did  not  consider  the  arrangement  between  Mr. 
Ellis  and  himself  as  extending  to  the  second  tract.  But  the 
history  of  the  arrangement  shows  he  had  no  right  to  adopt 
any  such  conclusion.  To  say  the  least  of  it,  his  conduct  as 
auctioneer,  in  reference  to  this  matter,  was  most  imprudent 
and  indiscreet. 

When  the  arrangement  was  made,  Ellis  asked  the  auc- 
tioneer if  he  knew  which  part  of  the  property  was  to  be  sold 
first.  The  reply  was,  he  did  not — he  had  heard  nothing 
about  it — but  he  presumed  they  would  sell  the  part  with  the 
buildings  first.  Mr.  Ellis  replied,  he  thought  so  too.  This 
is  all  that  was  said  in  reference  to  a  first  or  a  second  tract, 
or  as  to  the  manner  in  which  the  property  would  be  sold. 
Ellis  then  told  him  that  "  he  wished  to  be  a  bidder,  and  a 
secret  bidder."  This  is  the  account  given  by  Mr.  Wolcott 
himself,  when  sworn  as  a  witness  before  the  Orphans  Court. 
He  concludes  the  account  of  the  arrangement  between  them, 
after  stating  Ellis'  proposition  as  to  the  manner  he  would  bid, 
in  these  words:  "I  agreed  to  that,  and  told  him  I  would 
attend  to  it.  It  was  understood  between  us,  as  long  as  Mr. 
Ellis  kept  his  thumb  in  that  position,  I  was  to  consider  him 
a  bidder." 


OCTOBER  TERM,  1852.  181 

Conover  v.  Walling. 

Now,  what  right  had  Mr.  Wolcott  to  conclude  that  this 
arrangement  referred  only  to  the  first  tract,  and  more  espe- 
cially when  it  was  not  known  by  either  of  them  which  tract 
was  first  to  be  sold  ?  The  mystery  of  this  mistake  is  not 
lessened  by  the  subsequent  conduct  of  the  auctioneer. 

He  says  he  stood  in  the  same  position  when  he  cried  off 
the  second,  as  when  he  cried  off  the  first  tract;  that  Mr. 
Ellis  stood  nearly  in  the  same  position,  moving  in  the  crowd. 
He  did  not  notice  that  Mr.  Ellis  had  his  thumb  in  the  same 
position ;  he  was  where  he  could  have  seen  his  thumb  in  his 
lappel,  if  he  had  noticed;  he  did  not  look  to  see  whether  it 
was  so  or  not ;  Mr.  Ellis  remained  near  the  same  place  when 
he  cried  the  second,  as  when  he  cried  off  the  first  tract;  he 
could  have  seen  him ;  he  does  not  recollect  that  he  saw  Mr. 
Ellis'  thumb  in  that  position  during  the  second  sale;  he  did 
not  notice  it  when  he  was  in  the  act  of  striking  it  off;  if  he 
had  have  noticed  it  he  should  not  have  taken  it,  because  it 
was  a  heavy  property,  and  he  thought  Ellis  was  fully  satis- 
fied with  the  purchase  of  the  first  farm,  and  if  he  had  wanted 
to  purchase  the  second,  he  (the  auctioneer)  thought  Mr.  Ellis 
would  have  told  him  at  the  interview. 

It  is  unnecessary  to  comment  on  this  conduct  of  the  auc- 
tioneer to  show  that  the  responsibility  for  the  mistake,  and 
the  trouble  that  it  has  produced,  rests  altogether  with  him. 
I  have  no  doubt  as  to  the  upright  intentions  of  Mr.  Wolcott. 
But  in  this  case  he  did  not  act  the  part  of  prudence. 

That  the  consequence  of  this  mistake  was  a  reduced  price 
of  the  property,  is  beyond  a  reasonable  doubt.  Mr.  Ellis 
was  the  agent  of  Mrs.  Holmes.  She  had  authorized  him,  in 
writing,  to  bid  for  it  $15,000.  He  declares  it  was  his  inten- 
tion to  have  bid  that  sum,  if  necessary.  Immediately  after 
the  sale,  Mr.  Conover  refused  to  take  a  thousand  dollars  for 
his  bargain.  From  these  facts,  we  may  reasonably  conclude 
that,  but  for  this  mistake,  the  competition  would  have  been 
such  as  very  materially  to  have  increased  the  price  of  the  bid. 

The  question  remains,  as  to  the  propriety  of  the  commis- 
sioners in  allowing  the  property  to  be  struck  off  to  Conover. 


182  PREROGATIVE  COURT. 

Conover  t>.  Walling. 

If  tliis  mistake  was  brought  to  the  knowledge  of  the  com- 
missioners, at  a  time  when  it  was  proper  to  correct  it,  and 
when  it  might  have  been  corrected  consistently  with  the  rights 
of  all  parties  in  interest,  and  the  commissioners  refused  to 
correct  it,  they  did  wrong,  and  the  Orphans  Court  were  right 
in  not  confirming  the  sale. 

It  is  customary  in  New  Jersey,  at  public  sales,  where  a 
bid  is  claimed  by  two  or  more  persons,  and  there  is  really 
good  ground  for  dispute  as  to  the  claim  of  the  bid,  to  put 
the  property  up  again  at  the  price  and  at  the  bid  of  such 
one  of  the  competitors  as  the  auctioneer  may  declare  in  his 
judgment  entitled  to  it.  This  is  the  fair  way  of  settling  such 
disputes,  and  it  is  a  right  which  the  owner  of  the  property 
claims,  and  which  he  will  exercise,  because  it  is  to  his  advan- 
tage to  do  so. 

If  the  commissioners  did  not  in  this  case  conduct  the 
sale'in  the  usual  way,  and  the  owners  of  the  property  have 
been  injured  by  their  proceedings,  the  commissioners  were  in 
error,  and  the  court,  having  the  power  to  correct  that  error, 
ought  to  do  so,  unless  the  commissioners  can  in  some  way 
justify  themselves  in  pursuing  the  course  they  did. 

It  is  insisted,  on  behalf  of  the  appellant,  that  when  Ellis 
claimed  the  bid,  the  commissioners  offered  to  set  the  property 
up  again  ;  that  Ellis  refused,  and  declared  lie  would  leave  it 
to  the  auctioneer;  that  Conover  acquiesced,  and  that  the 
auctioneer  decided  in  favor  of  Conover. 

If  this  is  so,  there  is  no  ground  of  complaint  against  the 
commissioners.  If  Ellis  declined  having  the  proj>erty  put 
up  again,  it  amounted  to  a  refusal  on  his  part  to  bid  any 
more  for  the  property;  and  as  he  was  the  only  competitor  to 
Conover,  it  was  of  no  advantage  to  the  owners  to  offer  the 
property  further,  it  might  have  operated  to  their  detriment, 
for  the  effect  of  it  would  have  been  to  relieve  Conover  from 
his  bid.  In  this  view  of  the  case,  Ellis  declined  the  usual 
mode  of  settling  such  difficulties,  and  the  commissioners 
adopted  the  only  course  left  them,  and  are  not  reprehensible 
for  it. 


OCTOBER  TERM,  1852.  183 

Conover  v.  Walling. 

But  does  the  evidence  warrant  tin's  conclusion  ?  Are  the 
facts  such  as  establish  the  premises  from  which  it  is  drawn  ? 

Mr.  Wolcott  (the  auctioneer)  says,  "  When  it  Avas  struck 
off,  I  announced  who  was  the  highest  bidder.  I  stated  that 
the  highest  bidder  was  Peter  S.  Conover.  When  it  was  an- 
nounced that  Peter  S.  Conover  was  the  highest  bidder,  Mr. 
Ellis  claimed  the  bid.  I  replied  to  Mr.  Ellis,  that  if  he 
claimed  the  bid,  it  must  be  set  up  again,  for  I  did  not  recog- 
nize a  bid  from  him  for  that  part  of  the  property.  Mr.  Wal- 
ling (one  of  the  commissioners)  spoke  up  and  said — yes,  that 
was  the  way  to  settle  the  matter,  for  there  were  two  claim- 
ants. Mr.  Ellis  replied  that  he  would  leave  it  to  the  decision 
of  the  auctioneer.  Mr.  Conover  did  not  make  any  objection 
to  that.  The  decision  of  the  auctioneer  was  that  Peter  S. 
Conover  was  the  highest  bidder." 

There  is  nothing  in  this  evidence  of  Mr.  Wolcott  to  show 
that  Mr.  Ellis  declined  the  proposition  to  have  the  puoperty 
put  up  again,  except  it  can  be  implied  from  his  reply  to  the 
remarks  of  Mr.  Wolcott  and  Mr.  Walling,  that  he  would 
leave  it  to  the  auctioneer. 

Mr.  Ellis,  in  his  evidence,  says  he  did  not  wish  to  make  a 
fuss,  and  said,  I  will  leave  it  to  you,  by  which  he  meant  the 
commit  loners  and  the  auctioneer;  that  Mr.  Walling  then 
said,  if  there  was  any  dispute  it  must  be  set  up  again ;  to 
which  Mr.  Ellis  replied,  very  well,  that  is  enough,  and  re- 
peated it  once  or  twice  over.  He  further  says,  "  when  he 
said  that,  I  expected  it  would  be  put  up  again,  and  did  not 
think  anything  else." 

Mr.  Wai  ling's  testimony  does  not  corroborate  that  of  the 
auctioneer.  He  says,  "  when  the  property  was  struck  off  to 
P.  S.  Conover,  I  recollect  that  Mr.  Ellis  claimed  the  bid. 
There  was  something  then  said  about  setting  it  up,  and  some- 
thing said  about  leaving  it  to  the  auctioneer,  but  don't  think 
it  was  Mr.  Ellis.  I  don't  recollect  that  Mr.  Ellis  said  '•very 
well.'  I.  think  that  someone  said,  leave  it  to  the  auctioneer 
— and  Mr.  Ellis  assented  to  it." 

It  does  not  appear  that  the  other  commissioners  took  any 


184  PREROGATIVE  COURT. 

Conover  v.  Walling. 

part  in  the  matter,  or  that  they  were  consulted  or  knew  of  the 
difficulty.  They  did  not  remedy  the  mistake  as  they  ought 
to  have  done,  and  in  the  mode  customary  in  conducting  such 
public  sales. 

One  thing  is  certain,  the  difficulty  was  not  settled  by  the 
commissioners,  who  were  the  proper  persons,  and  who  ought 
to  have  settled  it.  Taking  Mr.  Waiting's  testimony  to  be 
correct,  it  is  evident  that  the  commissioners  did  not  act  in 
the  matter  for  the  interest  of  the  owners  of  the  property. 
All  the  commissioners,  Mr.  Walling  and  every  one  else,  who 
had  anything  to  say,  seem  to  have  treated  the  matter  as  one 
in  which  no  person  was  interested  but  Mr.  Conover  and  Mr. 
Ellis. 

That  Mr.  Ellis  did  not  make  any  further  complaint  after 
it  was  determined  Mr.  Conover  should  have  the  bid,  but  per- 
mitted the  conditions  of  sale  to  be  signed  without  remon- 
strance, does  not  alter  the  case.  Mrs.  Holmes  complained, 
and  said  there  was  something  wrong.  Mr.  Hubbard  said  it 
was  not  right.  Mr.  Ellis'  conduct,  subsequently,  was  such 
as  might  justly  be  considered  as  conclusive,  as  far  as  his  own 
individual  rights  and  interest  were  concerned,  but  ought  not 
to  prejudice  the  rights  of  others. 

Without  scrutinizing  the  evidence  further,  I  think  the  im- 
pression produced  by  it  is  very  strong  that  this  property  did 
not  bring  as  large  a  price  as  it  would  have  done  if  the  com- 
missioners had,  when  this  mistake  was  ascertained,  put  the 
property  up  again,  and  settled  it  in  the  usual  and  customary 
way. 

It  was  argued,  on  behalf  of  the  appellant,  that  the  arrange- 
ment between  the  auctioneer  and  Mr.  Ellis  was  illegal  and 
improper,  and  ought  not  to  be  favored  or  countenanced  by 
the  court.  To  this  I  assent.  But  the  more  improper  and 
illegal  was  the  conduct  of  the  auctioneer,  the  more  manifest 
is  the  wrong  committed  on  the  rights  of  the  owners  of  the 
property,  and  the  propriety  of  the  court's  redressing  the 
grievance. 

Upon  a  careful  review  of  the  whole  case,  I  am  unwilling 


FEBRUARY  TERM,  1854.  185 

Winants  v.  Terhune. 

to  say  that  the  Orphans  Court  did  wrong  in  making  the  de- 
cree they  did.  It  must  therefore  be  affirmed. 

As  to  the  costs,  Mr.  Conover  must  be  put  to  no  expense  in 
prosecuting  this  appeal.  He  is  an  innocent  party,  and  be- 
came involved  in  this  controversy  by  the  conduct  of  others, 
for  which  he  is  not  responsible. 

As  the  case  is  before  me,  I  have  no  right  to  give  direc- 
tions as  to  any  other  costs,  except  of  this  appeal ;  but  I  have 
no  doubt,  as  to  other  costs  incurred  by  Mr.  Conover,  the  Or- 
phans Court  will  see  the  propriety  and  justice  of  their  being 
paid  out  of  the  money  raised  from  the  further  sale  of  the 
estate. 


WILLIAM  WINANTS,  executor,  appellant,  and  MARIA  TER- 
HUNE, respondent. 

The  personal  property  of  a  testator  is  by  law  the  primary  fund  out  of 
which  the  debts  are  to  be  paid. 

Properly  nothing  is  the  personal  estate  of  the  testator  which  was  not  so  at 
his  death. 

If  a  testator  directs  lands  to  be  sold  and  converted  into  money  to  pay  his 
debts,  the  proceeds  become  a  fund  which  is  liable  for  his  debts. 

But  where  the  conversion  of  the  land  into  money  is  ordered  in  the  will  for 
a  specific  purpose,  as  if  the  direction  is  to  convert  the  estate  in  order  to 
give  a  legacy,  the  creditors  cannot  claim  the  money  as  personal  estate. 

The  will  in  question  contained  the  following  clause :  "  I  also  order  my 
executors  to  sell  my  house  and  lot  at  Binghampton,  Broome  county,  and 
state  of  New  York,  as  soon  as  conveniently  can  be  after  my  decease,  and 
to  execute  lawful  deeds  for  the  same,  if  I  don't  dispose  of  the  same  in  my 
lifetime ;  and  the  money  arising  therefrom  must  be  paid  by  my  executors 
towards  the  debt  of  my  son  Peter,  where  I  am  bound  as  surety  for  my 
son  Peter  ;  the  remainder  of  the  purchase  money  of  the  house  and  lot,  if 
any  there  should  be,  I  give  unto  my  daughter-in-law  Charity  Ann,  the 
wife  of  my  son  Peter."  The  executors  sold  the  premises,  and  there  was 
a  remainder  after  paying  the  debts  specified ;  and  on  an  application  to 
the  Orphans  Court  for  an  order  to  sell  lands  on  a  deficiency  of  personal 
property  to  pay  debts,  that  court  refused  the  application  on  the  ground 
the  remainder  of  the  proceeds  of  the  sale  of  the  Binghampton  property 
was  personal  estate,  and  must  be  applied  to  the  payment  of  the  several 
debts. 


186  PREROGATIVE  COURT. 


Winants  v.  Terlmne. 

Held,  in  (he  Prerogative  Court,  reversing  this  decision  of  the  Orphans 
Court,  that  the  proceeds  of  the  sale  of  the  Binghampton  property  could 
only  be  regarded  as  personalty  for  the  specific  purposes  designated  in  the 
will,  and  that  an  order  should  be  made  to  sell  lands  to  pay  the  general 
debts. 


A.  0.  ZabrisJcie,  for  appellants. 
Hopper  and  .Santa,  for  respondents. 

The  following  state  of  facts  is  agreed  upon  by  the  parties 
and  their  counsel  to  be  used  upon  the  hearing  of  the  appeal. 

That  it  was  shown  to  the  Orphans  Court,  upon  hearing 
the  application,  that  the  rule  to  show  cause  has  been  duly 
advertised  in  the  manner  prescribed  by  law. 

That  there  was  no  evidence  of  any  personal  property,  other 
than  the  sum  of  four  hundred  and  seventy-one  dollars  and 
ninety-three  cents,  set  forth  in  the  two  items  of  amounts  of 
debts  and  credits. 

That  it  was  shown  to  the  court,  by  proof,  that  all  the  items 
set  forth  in  the  account  of  debts  and  credits  rendered  by 
the  executor  were  debts  due  from  the  deceased,  except  the 
sum  of  forty-three  dollars  and  forty-seven  cents,  stated  to  be 
due  to  Stephen  Goetchius,  and  except  the  item  of  fifteen  dol- 
lars, for  funeral  expenses,  which  sum  was  paid  by  the  execu- 
tor to  Peter  I.  Terhune,  the  father  of  the  deceased,  upon  his 
allegation  that  he  had  advanced  it  to  the  widow  for  funeral 
expenses,  which  debt  so  proved,  after  deducting  the  said  two 
sums,  amo*unte  to  nine  hundred  and  seventy-two  dollars  and 
seventy-six  cents. 

It  was  further  shown  that  the  amount  of  four  hundred  and 
sixty-three  dollars  and  seven  cents  of  said  debts  had  been 
paid  by  said  executor,  besides  the  fifteen  dollars  for  funeral 
expenses  anil  the  sum  of  twenty-five  dollars  paid  Richard  R. 
Paulison,  for  surrogate's  and  Orphans  Court's  fees,  in  the  set- 
tlement of  this  estate. 

It  was  shown,  by  proof,  that  the  said  testator  had  real  estate 
in  the  county  of  Bergen,  consisting  of  a  farm,  containing 
fifty-eight  acres,  and  three  out-lots,  containing  seventeen  and 


FEBRUARY  TERM,  1854. 


187 


Winants  v.  Terhune. 


one  half  acres,  and  the  situation  and  relative  value  of  said 
land  was  shown. 

The  will  of  the  deceased,  with  the  probate  thereof,  was 
offered  in  evidence,  pro  ut  the  same. 

The  inventory  of  the  estate  of  deceased  was  offered  in  evi- 
dence, pro  ut  the  same. 

It  was  shown  that  deceased  died,  on  January  20th,  1851, 
leaving  ten  children,  seven  of  whom  were  minors  under  the 
age  of  twenty-one  years. 

It  was  shown  that  the  deceased  had  a  house  and  lot  at 
Binghampton,  Broome  county,  state  of  New  York,  which 
was  conveyed  to  him  by  his  son  Peter,  June  llth,  1850,  for 
the  sum  of  twenty-three  hundred  dollars,  six  hundred  and 
seventy  dollars  of  which  sum  the  deceased  was  liable  to  pay 
on  notes  of  that  amount  on  which  he  was  security  for  his  son 
Peter,  six  hundred  and  seventy-five  of  which  the  deceased 
borrowed  on  his  own  sundry  notes  for  his  son  Peter,  and  the 
sum  of  one  thousand  dollars  of  which  was  cash,  which  the 
deceased  lent  to  Peter;  that  said  property  was  subject  to  two 
mortgages,  amounting  to  seven  hundred  and  fifty  dollars. 

It  was  shown  that  the  consideration  of  the  deed  for  the 
Binghampton  property  from  Peter  to  testator  was  for  money 
taken  up  by  deceased  for  his  son  Peter,  and  also  for  what 
money  he  had  lent  him;  and  the  arrangement  between  the 
deceased  and  his  son  Peter,  when  deceased  took  the  deed  from 
Peter  for  the  Binghampton  property  for  this  money  advanced 
to  Peter,  was  that  when  Peter  could  pay  one  thousand  dollars 
on  the  property,  he  would  reconvey  it  to  Peter,  and  take  a 
mortgage  for  the  balance.  Peter  was  to  pay  him  the  whole 
amount  either  in  cash  or  securing  him  by  mortgage  as  above. 

It  was  shown  that  the  three  items,  of  six  hundred  and 
seventy  dollars,  six  hundred  and  seventy-five  dollars,  and  one 
thousand  dollars,  were  charged  against  Peter  in  a  small  book 
kept  by  the  deceased,  and  shown  the  executor. 

Five  letters  from  Peter  to  the  testator,  dated  June  llth, 
June  16th,  June  24th,  January  9th,  and  February  24th,  1850, 
were  offered  in  evidence,  pro  ut  the  same. 


188  PREROGATIVE  COURT. 

Winants  v.  Terhune. 

It  was  shown  that  Peter  had  leased  the  store  on  the  Bing- 
hampton  property  for  two  hundred  dollars  per  year,  which 
lease  he  gave  to  the  deceased.  Peter,  with  his  family,  also 
lived  in  the  house,  which  contained  four  living  rooms  besides 
bed-rooms. 

It  was  shown  that  the  personal  property  was  sold  by  the 
executor  to  the  widow  of  the  testator  at  inventory  prices,  and 
paid  for  by  her. 

It  was  shown  that  the  executor,  without  having  proved  the 
will  in  the  state  of  New  York,  sold  and  conveyed  the  house 
and  lot  at  Binghampton,  Broome  county,  New  York,  men- 
tioned in  the  will  of  the  testator,  to  Charity  Ann,  the  daugh- 
ter-in-law of  the  testator,  and  wife  of  his  son  Peter.  That 
the  consideration  mentioned  in  the  deed  was  two  thousand 
dollars,  of  which  the  two  mortgages,  with  interest  due  thereon, 
formed  part,  and  the  sum  of  seven  hundred  and  sixteen  dol- 
lars and  forty-five  cents  was  paid  in  discharge  of  five  notes  of 
the  testator's  son  Peter,  whereon  the  testator  was  security, 
and  on  which  said  sum  was  due,  and  the  residue  of  said  con- 
sideration, amounting  to  eight  hundred  and  thirteen  dollars, 
was  retained  by  Charity  Ann,  the  wife  of  Peter,  being  claimed 
by  her  by  virtue  of  the  bequest  to  her  in  the  will,  as  by  a 
receipt  from  said  Charity  Ann  to  said  executor,  dated  June 
2d,  1851,  which  said  receipt  was  offered  in  evidence,  pro  ut 
the  same. 

It  was  shown  that  Richard  R.  Paulison,  an  attorney  at  law, 
who  drew  the  deed  for  the  Binghampton  property  to  Charity 
Ann,  advised  the  executor,  that  if  they  chose  to  take  the  deed 
without  the  will  being  proved  in  the  state  of  New  York,  it 
was  no  matter  to  him,  the  executor.  The  whole  arrangement 
was  so  done  to  save  expense. 

It  was  shown  that  there  was  an  order  to  limit  creditors, 
and  a  final  decree  thereon  by  the  Orphans  Court  of  Bergen 
county,  and  that  the  executor  had  not  filed  any  refunding 
bond  in  the  surrogate's  office. 

It  was  further  shown  that  the  five  notes  above  mentioned, 
upon  which  the  testator  was  security  for  his  son  Peter,  were 


FEBRUARY  TERM,  1854. 


189 


Winants  v.  Terhune. 


paid  and  taken  up  by  said  Charity  Ann,  and  delivered  by  her 
to  the  executor  in  part  payment  of  the  consideration  money 
of  the  deed  to  her. 

It  was  further  shown  that  part  of  the  money,  which  the 
deceased  borrowed  on  his  own  sundry  notes  for  his  son  Peter, 
forms  part  of  the  indebtedness  of  the  estate  of  testator,  as 
exhibited  in  the  amounts  of  debts  and  credits  by  the  execu- 
tor, consisting  particularly  of  the  following :  Lawrence  J. 
Ackerman,  the  sum  of  three  hundred  and  fifty  dollars  and 
fifty-seven  cents;  Henry  Ackerbach,  the  sum  of  fifty-four 
dollars  and  twenty-five  cents ;  Christian  W.  Campbell,  the 
snm  of  one  hundred  and  eight  dollars  and  sixty-nine  cents, 
and  Harman  Van  Dien,  the  sum  of  two  hundred  and  seven 
dollars  and  twenty  cents. 

The  executor  presented  his  petition  to  the  Orphans  Court, 
praying  a  sale  of  the  testator's  lands  to  pay  the  debts.  The 
respondent  showed  cause,  and  the  Orphans  Court,  after  hear- 
ing' the  parties,  made  an  order  refusing  the  application. 
From  this  order  an  appeal  was  taken  to  the  Prerogative 
Court.  The  following  is  a  copy  of  the  will  referred  to  in 
the  state  of  the  case  : 

In  the  name  of  God,  amen.  I,  Henry  L.  Terhune,  of  the 
township  of  Hoboken,  in  the  county  of  Bergen,  and  state  of 
New  Jersey,  being  weak  in  body,  but  of  a  sound  disposing 
mind  and  memory,  blessed  be  Almighty  God  for  the  same, 
do  make  and  publish  this  my  last  will  and  testament  in 
manner  and  form  following,  that  is  to  say :  First.  It  is 
my  will,  and  I  do  order  my  executors  herein  after  named  to 
satisfy  and  pay  all  my  just  debts  and  funeral  expenses  as  soon 
as  conveniently  can  be  after  my  decease.  Secondly.  I  give, 
devise,  and  bequeath  unto  my  beloved  wife,  Maria  Terhune, 
all  the  remainder  of  my  personal  estate  and  all  -my  land  and 
real  estate  in  the  state  of  New  Jersey  to  her  own  use  till  my 
youngest  child  arrives  to  the  age  of  seventeen  years,  then  I 
order  my  executors  to  sell  all  my  land  and  real  estate  in  the 
state  of  New  Jersey,  and  to  execute  lawful  deed  or  deeds  for 

VOL.  ii.  M 


190  PREROGATIVE  COURT. 

Winan's  v.  Terhune. 

the  same,  also  all  my  personal  estate,  either  at  public  or  pri- 
vate, as  they  shall  think  proper;  the  money  arising  from  the 
sale  of  my  real  and  personal  estate,  the  one-third  thereof, 
must  be  put  to  interest  by  my  executors,  and  the  interest  aris- 
ing therefrom  must  annually  be  paid  to  my  said  wife  Maria, 
as  long  as  she  shall  remain  my  widow,  in  lieu  of  her  right  of 
a  dower  in  all  my  estate;  the  remainder,  two-thirds  of  the 
purchase  money,  must  be  equally  divided  between  my  child- 
ren, share  and  share  alike,  after  the  death  or  intermarriage  of 
my  said  wife;  the  principal  sum  that  was  put  to  interest  by 
my  executors  must  be  divided  between  all  my  children  the 
same  as  the  aforesaid  two-thirds  of  the  purchase  money.  I 
also  order  my  executors  to  sell  my  house  and  lot  at  Bing- 
hampton,  Broome  county,  and  state  of  New  York,  as  soon  as 
conveniently  can  be  after  my  decease,  and  to  execute  lawful 
deeds  for  the  same,  if  I  don't  dispose  of  the  same  in  my  life- 
time, and  the  money  arising  therefrom  must  be  paid  by  my 
executors  towards  the  debt  of  my  son  Peter,  where  I  am 
bound  as  surety  for  my  son  Peter ;  the  remainder  of  the  pur- 
chase money  of  the  house  and  lot,  if  any  there  should  be,  I 
give  unto  my  daughter-in-law  Charity  Ann,  the  wife  of  my 
son  Peter,  which  I  give  unto  her  for  her  own  separate  use,  and 
by  taking  her  own  separate  receipt  therefor.  The  share  herein 
before  given  to  my  son  Peter  must  be  paid  to  my  daughter- 
in-law  Charity  Ann,  the  wife  of  my  son  Peter,  for  her  own 
separate  use,  and  by  taking  her  own  separate  receipt  therefor. 
And  lastly,  I  do  nominate,  constitute,  and  appoint  William 
"Winants  and  Henry  Ritan  executors  of  this  my  last  will  and 
testament,  hereby  revoking  all  former  wills  by  me  made. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal 
this  twenty-first  day  of  September,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty  (1850). 

Signed,  sealed,  published,  and  declared  by  the  above  named 
Henry  L.  Terhune  to  be  his  last  will  and  testament,  in  the 
presence  of  us,  who  have  hereunto  subscribed  our  names  as 
witnesses  in  the  presence  of  the  testator  and  of  each  other. 

HENRY  L.  TERHUNE. 


FEBRUARY  TERM,  1854.  191 

Winants  v,  Terhune. 

THE  ORDINARY.  The  important  question  presented  is, 
whether  the  eight  hundred  and  thirteen  dollars,  which  the 
executor  realized  from  the  sale  of  the  Binghampton  property, 
after  paying  seven  hundred  and  sixteen  dollars  and  forty-five 
cents  in  discharge  of  debts  for  which  the  testator  was  bound 
as  security  for  his  son  Peter,  were  assets  in  the  hands  of  the 
executor  for  the  payment  of  the  testator's  debts.  The  Or- 
phans Court  decided  that  they  were,  and  on  that  ground 
refused  a  decree  for  the  sale  of  the  lands  of  which  the  testator 
died  seized. 

The  statute  provides,  that  if,  on  full  examination,  the  court 
shall  find  that  the  personal  estate  of  the  testator  or  intestate 
is  not  sufficient  to  pay  his  debts,  they  shall  order  and  direct 
the  executor  or  administrator  to  sell  the  whole,  if  neces- 
sary, of  the  lands,  &c.,  for  the  purpose,  or  so  much  thereof  as 
will  be  sufficient. 

Were  the  assets  in  the  executor's  hands  personal  property, 
which  by  law  he  could  apply  for  the  payment  of  the  outstand- 
ing debts  of  the  testator? 

The  executor  was  ordered,  by  the  will,  to  sell  the  house 
and  lot  at  Bingharnpton  for  a  specific  purpose.  That  purpose 
was,  to  take  the  produce  of  the  sale,  and  pay,  first,  the  debt 
of  the  testator's  son  Peter,  where  he  was  bound  as  surety  for 
his  son,  and  the  "remainder,"  if  any  there  should  be,  the 
testator  says,  "  I  give  unto  my  daughter-in-law  Charity  Ann, 
the  wife  of  my  son  Peter,  which  I  give  unto  her  for  her  own 
separate  use  and  by  taking  her  own  separate  receipt  there- 
for." 

The  argument  on  behalf  of  the  respondent,  is  that  the 
executor  sold  the  Binghampton  property,  and  thereby  con- 
verted it  into  personal  property ;  that  the  personal  property 
is  the  primary  fund  which  is  to  answer  for  the  debts,  and 
therefore  this,  as  personal  property,  must  be  so  appropriated. 

It  is  true  the  personal  estate  of  the  testator  is  by  law  the 
primary  fund  out  of  which  the  debts  are  to  be  paid.  But, 
as  was  said  in  Mangham  v.  Mason,  1  Ves.  &  B.  Rep.,  "  Pro- 
perly nothing  is  the  personal  estate  of  the  testator  that  was 


192  PREROGATIVE  COURT. 

Winants  v.  Terhune. 

not  so  at  his  death."  If  a  testator  directs  lands  to  be  sold 
and  converted  into  money  to  pay  his  debts,  the  proceeds  be- 
come a  fund  which  is  liable  for  the  debts  of  the  testator,  not 
because  it  is  personal  property,  but  because  it  is  so  appropri- 
ated, not  by  law  but  by  the  will  of  the  testator.  The  testa- 
tor ordered  this  land  to  be  converted  into  money  for  a  specific 
purpose.  If  the  executor  can  appropriate  it  for  any  other 
purpose,  it  will  be  in  direct  violation  of  the  will  of  the  tes- 
tator. He  cannot  do  it  without  violating  both  the  law  and 
the  testator's  intention,  unless,  because  it  has  been  converted 
into  money,  the  law  will  stamp  it  as  personal  property  for 
any  other  purpose  than  that  designated  by  the  testator. 

In  Gibbs  v.  Ougier,  12  Ves.  413,  the  master  of  the  rolla 
says :  If  you  can  find  a  substantive  and  independent  inten- 
tion to  turn  the  real  estate,  at  all  events  into  the  personal,  that 
will  do;  not  where  there  is  only  a  specific  purpose,  and  no 
conversion,  except  to  answer  that  purpose,  as  if  the  direc- 
tion is  to  convert  the  estate  in  order  to  give  a  legacy,  the 
creditors  cannot  come  and  take  that  from  the  legatee,  merely 
as  that  is  the  mode  in  which  it  is  given  to  him.  In  that 
case  the  executors  were  ordered  to  sell  all  the  testator's  land 
and  to  dispose  of  it  to  different  legatees.  There  was  no  pro- 
vision for  the  payment  of  the  debts.  A  creditor,  by  simple 
contract,  filed  his  bill  praying  the  usual  decree,  and  that,  in 
case  the  personal  estate  should  not  be  sufficient  to  satisfy  the 
debts,  the  real  estate  might  be  declared  liable  to  make  good 
the  deficiency.  The  counsel  argued  it  was  the  intention  of 
the  testator,  to  all  intents  and  purposes,  to  convert  the  real 
estate  into  money,  by  the  effect  of  which  direction  it  was 
mere  personal  estate,  and  would  be  taken  as  such  by  the 
executor  or  next  of  kin,  and  by  analogy  the  court  should 
say  it  could  not  be  got  at  without  paying  the  debts.  But 
the  court  decided  that  the  creditors  could  not  take  the  estate 
from  the  legatee  merely,  because,  on  transmitting  it  from  the 
hands  of  the  executor  to  the  legatee,  it  assumed  the  shape  of 
personal  property.  It  was  converted  for  one  specific  purpose, 
and  for  that  only  was  personal  property. 


FEBRUARY  TERM,  1854. 


Winants  v.  Terhune. 


It  makes  no  difference,  in  respect  to  this  question,  in  what 
quality  the  devisee  took  the  property,  whether  as  real  or  per- 
sonal. As  far  as  she  was  concerned  it  was  personal  property ; 
for,  as  such,  it  was  the  intention  of  the  testator  she  should 
take  it.  In  the  event  of  her  death  it  would  have  gone  to 
her  personal  representative.  But  the  land  was  converted  for 
no  purpose  except  that  which  the  will  directed ;  and  if  the 
creditors  have  any  claim  to  it,  they  must  show  it  under  the 
will.  The  conversion  was  merely  the  mode  in  which  the 
estate  was  given  for  certain  specific  purposes;  and  simply 
because  that  mode  has  been  adopted,  it  cannot  so  change  its 
character  as  to  defeat  the  intention  of  the  testator.  The  ex- 
ecutor had  no  right  to  take  the  proceeds  of  the  sale  for  any 
other  purpose  but  that  directed  by  the  will.  It  was  not  per- 
sonal property  for  any  other  purpose.  It  is  admitted  that 
without  this  fund  the  personal  estate  of  the  testator  was  de- 
ficient. In  contemplation  of  the  statute,  then,  the  personal 
estate  of  the  testator  was  not  sufficient  to  pay  his  debts. 

But,  on  behalf  of  the  respondent,  it  was  further  insisted 
that  part  of  the  debts  remaining  unpaid  were  debts  which 
were  to  be  paid  out  of  the  proceeds  of  the  Binghampton 
property.  The  debts  to  be  paid  out  of  this  fund  were  the 
debts  of  Peter,  for  which  the  testator  was  bound  as  surety. 
The  Binghampton  property  had  been  purchased  by  the  testator 
of  his  son,  for  the  sum  of  $2300,  six  hundred  and  seventy 
dollars  of  which  sum  the  testator  was  liable  to  pay  on  notes  of 
that  amount  on  which  he  was  security  for  his  son  ;  six  hundred 
and  seventy-five  dollars  money,  borrowed  on  his  own  notes 
for  his  son,  and  one  thousand  dollars  cash,  which  he  had  lent 
to  Peter.  These  several  items  the  testator  had  charged 
against  his  son  in  a  small  book  kept  by  him.  It  was  insisted 
that  it  was  the  testator's  intention  that  the  proceeds  of  the 
sale  of  the  property  should  pay  these  several  sums  of  money. 
The  language  of  the  will  does  not  admit  of  such  a  construction. 
The  fund  was  bound  for  no  debts  except  such  as  the  testator 
was  bound  as  surety  for  his  son  at  the  time  the  will  was  made. 
It  was  competent  for  the  respondent  to  show  what  deSts  the 


194  PREROGATIVE  COURT. 

Brokaw  v.  Peterson. 

testator  was  surety  for  at  the  time  of  making  the  will.  The 
will  does  not  show  on  its  face  what  these  debts  were,  and  ex- 
trinsic evidence  must  necessarily  be  resorted  to  for  the  purpose. 
It  does  not  appear,  by  the  case  agreed  upon,  that  there  were 
any  other  such  debts,  except  those  amounting  to  $716.55,  due 
upon  the  notes  of  his  son,  on  which  the  testator  was  security. 

With  the  view  I  have  taken  of  the  case,  it  is  unnecessary 
to  examine  the  question,  as  to  the  effect  upon  the  point  in  con- 
troversy of  the  executor's  having  sold  the  Binghampton  prop- 
erty without  first  having  taken  out  letters  testamentary  in  the 
state  of  New  York. 

The  case  must  be  remitted  to  the  Orphans  Court,  with  direc- 
tions to  proceed  and  make  decree  for  the  sale  of  the  real  estate 
of  the  testator  to  pay  his  debts,  or  so  much  thereof  as  may  be 
necessary  for  the  purpose. 

CITED  in  Clayton  v.  Scnner'a  Ejrs,  12  0.  E.  Gr.  233. 


JOSEPH  BROKAW,  by  his  guardian,  appellant,  vs.  PETER  C. 
PETERSON  and  JOHX  V.  M.  QUICK,  respondents. 

The  word  children  does  not,  ordinarily  and  properly  speaking,  comprehend 
grandchildren,  or  issue  generally.  Their  being  included  in  that  term  is 
permitted  in  two  cases  only,  viz.  from  necessity,  which  occurs  when  the 
will  would  remain  inoperative  unless  the  sense  of  the  word  children  were 
extended  beyond  its  natural  import,  and  where  the  testator  has  clearly 
shown,  by  oilier  words,  that  he  did  not  intend  to  use  the  term  children 
in  its  proper  actual  meaning,  but  in  a  more  extensive  sense. 

Courts  of  probate  are  not  governed  by  the  same  strict  rules  as  a  court  of 
construction  in  reference  to  the  admission  of  parol  evidence.  There  are 
a  number  of  cases  where  mistakes  made  in  preparing  a  will  have  been 
corrected. 

Decedent  made  a  will,  dated  14th  January,  1845.  He  had  then  living  one 
son,  seven  daughters,  and  four  grandchildren,  the  children  of  a  deceased 
son.  The  testator  gave  to  his  daughter,  Elizabeth,  a  certain  portion  of 
his  real  estate,  and  then  directed  his  executors  to  convert  the  residue  of 
both  real  and  personal  estate  into  money,  and  to  distribute  the  same  as 
follows:  To  his  son  Peter,  two  shares ;  to  each  of  his  daughters,  with 
the  exception  of  Elizabeth,  one  share ;  and  also  one  share  to  his  four 


MAY  TERM,  1854.  195 


Brokaw  v.  Peterson. 


grandchildren,  the  children  of  his  deceased  son  Garret.  It  was  further 
provided,  that  if  any  of  said  children  should  die  previous  to  said  distri- 
bution, the  share  of  such  child  so  dying  should  go  to  his  or  her  children. 
In  the  year  1850,  one  of  the  testator's  daughters  died,  leaving  a  son,  and 
who,  under  the  above  provision  of  the  will,  would  have  taken  the  share 
of  his  mother.  The  testator,  then,  in  1851,  made  a  second  will,  in  most 
of  its  provisions  similar  to  the  former  one,  but  with  the  exception  that, 
after  providing  for  Elizabeth,  the  devise  is  made  to  his  three,  instead  of 
four  daughters.  This  will  then  also  provides  that,  in  case  of  the  death 
of  any  of  his  children,  the  share  of  such  child  shall  go  to  his  or  her 
children.  Under  this  will  it  was  clear  that  the  son  of  the  deceased 
daughter  would  not  take.  Evidence  was  offered  to  show  that  it  was  the 
intention  of  the  testator,  by  his  last  will,  to  give  to  the  son  of  the  de- 
ceased daughter  the  share  which  would  have  come  to  him  by  force  of 
the  former  will.  Held,  that  as  there  was  no  ambiguity  on  the  face  of 
the  will,  as  there  was  no  fraud,  and  no  mistake  by  the  testator  as  to  any 
fact,  the  court  could  not  reform  the  will  so  as  to  make  it  correspond  with 
the  presumed  intentions  of  the  testator. 


S.  M.  Gaston  and  G.  H.  Brown,  for  caveators.  « 

J.  F.  Randolph,  for  executors. 

THE  ORDINARY.  One  of  the  papers  in  question  was  ad- 
mitted to  probate  by  the  surrogate  of  the  county  of  Somerset, 
as  the  last  will  and  testament  of  Cornelius  Peterson,  deceased. 
It  bears  date  the  fourteenth  day  of  October,  1851.  Joseph 
Brokaw,  by  his  guardian,  Frederick  D.  Brokaw,  has  appealed 
from  the  adjudication  made  by  the  surrogate ;  and  the  object 
of  this  appeal  is  to  reject  this  paper,  and  admit  to  probate 
another  paper  writing,  purporting  to  be  the  last  will  of  the 
said  Cornelius  Peterson,  or  else  to  admit  this  other  paper,  in 
conjunction  with  the  one  proved,  in  aid  of  the  construction 
of  some  of  the  provisions  of  the  one  already  admitted  to  pro- 
bate. 

Waiving  all  considerations  as  to  the  character  of  this  ap- 
peal, and  the  manner  in  which  the  questions  involved  are 
brought  before  the  court  (as  they  were  not  questioned  on  the 
argument),  I  shall  proceed  to  decide  upon  the  merits  of  the 
case. 

On  the  fourteenth  day  of  January,  1845,  Cornelius  Peter- 


196  PREROGATIVE  COURT. 

Brokaw  v.  Peterson. 

BOH  had  tlicn  living  one  son,  seven  daughters,  and  four  grand- 
children, the  children  of  a  deceased  son.  On  that  day  he 
made  his  will.  By  it  he  disposed  of  all  his  property,  and 
made  provision  for  all  his  children  and  for  the  children  of  his 
deceased  son.  The  clauses  of  the  will,  by  which  he  disposes 
of  his  estate,  are  as  follows : 

"  Item  3d.  I  give  and  devise  to  my  executors  the  farm, 
containing  about  sixty-six  acres  eighty-four  hundredths  of 
an  acre,  more  or  less,  which  I  lately  purchased  of  John  Van 
Zant  and  wife,  and  three  acres  of  woodland,  I  lately  pur- 
chased of  Abraham  Davis  and  wife,  situated  in  Hillsborough, 
in  trust  for  the  use  and  benefit  of  my  daughter  Elizabeth, 
during  her  natural  life,  and  at  her  death  I  give  the  same  to 
her  lawful  issue  equally,  and  those  who  represent  them. — 
Item  4th.'  I  authorize  my  executors,  herein  after  named,  to 
sell  and  dispose  of  all  the  residue  of  my  real  and  personal 
property  to  the  best  advantage,  and  the  money  from  thence 
arising  I  give  to  my  children,  as  follows  :  To  my  son  Peter 
two  shares,  to  my  daughters  one  share,  excepting  my  daugh- 
ter Elizabeth  ;  but  should  the  shares  of  my  daughters  exceed 
two  thousand  three  hundred  dollars,  the  price  I  paid  for  said 
farm,  then  said  Elizabeth  to  be  made  equal  with  her  sisters 
in  worth  even  amount  they  and  each  of  them  may  receive 
over  said  sum  of  two  thousand  six  hundred  dollars. — Item 
5th.  To  the  four  children  of  my  deceased  son  Garret,  to  wit, 
Ellen,  Ann  Maria,  Catharine,  and  Elizabeth,  and  to  the  sur- 
vivors of  them,  I  give  a  daughter's  share,  and  they  to  share 
equally. — Item  6th.  If  in  the  course  of  human  events  any 
of  my  children  should  die  previous  to  the  division  of  my 
estate,  then  that  child  share  to  descend  to  his  or  her  child  or 
children,  but  if  no  child  or  children,  then  to  fall  in  the  resi- 
due of  my  estate,  and  to  be  divided  as  aforesaid." 

After  making  this  will,  and  in  the  year  1850,  Adeline,  one 
of  the  daughters,  died.  She  left  an  only  son,  Joseph  Bro- 
kaw, who  is  the  appellant  in  this  case.  Under  this  will,  he 
uudoubtedly  stood  iu  the  place  of  his  mother,  and  was  enti- 


MAY  TERM,  1854.  197 


Brokaw  v.  Peterson. 


tied  to  one  share  of  the  residuary  estate,  as  it  was  apportioned 
in  the  will. 

On  the  fourteenth  day  of  October,  1851,  Cornelius  Peter- 
son made  the  will  admitted  to  probate.  By  it  the  same  de- 
vise is  made  to  the  daughter,  Elizabeth,  the  same  directions 
given  to  the  executors  to  sell  the  residue  of  his  real  and  per- 
sonal estate — then  follows,  "and  the  money  from  thence 
arising  I  give  and  bequeath  to  my  children  as  follows,  viz. 
I  give  to  my  son,  Peter  C.  Peterson,  two  shares,  to  my  daugh- 
ters one  share,  except  my  daughter  Elizabeth;  but  should 
the  shares  of  my  other  daughters  exceed  two  thousand  six 
hundred  dollars  (at  which  sum  I  value  the  real  estate  devised 
in  trust  to  my  daughter  Elizabeth),  then  in  such  case  said 
Elizabeth  to  be  made  equal  with  her  sisters  in  whatever 
amount  they  and  each  of  them  may  receive  over  said  sum  of 
two  thousand  six  hundred  dollars."  Then  follows  the  devise 
to  his  grandchildren,  children  of  his  deceased  son  Garret,  the 
same  as  in  the  former  will  of  1845,  with  the  exception  that 
the  devise  is  made  to  his  three,  instead  of  four  children,  one  of 
them  having  died  in  the  intervening  period  between  the  exe- 
cution of  the  two  papers.  He  then,  in  like  manner  as  in  his 
previous  will,  provides  that,  in  case  of  the  death  of  any  of 
his  children  previous  to  the  division  of  his  estate,  then  the 
share  of  such  deceased  child  shall  go  to  his  or  her  child  or 
children. 

Uixler  the  last  will,  the  appellant  can  take  no  interest  in 
the  testator's  estate ;  for,  by  its  terms  and  legal  construction, 
he  cannot  be  substituted  in  the  place  of  his  mother.  Under 
the  first  will  he  would  take;  for  by  it  a  portion  of  the  testa- 
tor's estate  was  given  to  each  of  his  children,  of  whom  the 
appellant's  mother  was  one;  and  it  was  provided,  that  if 
either  of  the  children  should  die  before  the  estate  should  be 
divided,  then  the  share  of  such  deceased  child  should  go  to 
his  or  her  child  or  children.  By  the  last  will,  a  portion  was 
in  like  manner  given  to  each  of  the  testator's  children,  but 
at  the  time  of  the  execution  of  the  will  the  appellant's  mother 


198  PREROGATIVE  COURT. 

Brokaw  v.  Peterson. 

was  dead,  and  there  is  nothing  in  the  will  to  authorize  a 
grandchild  to  be  substituted  for  its  parent. 

The  word  "children"  does  not,  ordinarily  and  properly 
speaking,  comprehend  grandchildren  or  issue  generally. 
Their  being  included  in  that  term  is  only  permitted  in  two 
cases,  viz.  from  necessity,  which  occurs  when  the  will  would 
remain  inoperative  unless  the  sense  of  the  word  "children" 
were  extended  beyond  its  natural  import,  and  where  the  tes- 
tator has  clearly  shown  by  other  words  that  he  did  not  intend 
to  use  the  term  "  children  "  in  its  proper  actual  meaning,  but 
in  a  more  extensive  sense.  1  Roper  on  Leg.  69. 

Courts  have  inclined  towards  giving  a  liberal  construction 
to  wills  in  order  to  prevent  the  exclusion  of  the  issue  of  a 
deceased  child.  But  the  principle  upon  which  the  cases  relied 
upon  by  the  appellant's  counsel  were  decided  does  not  bring 
the  present  case  within  the  exceptions  to  the  general  rule. 

In  the  case  of  Giles  v.  Giles  (8  Sim.  360),  the  Vice  Chan- 
cellor let  in  an  issue  of  a  deceased  child,  who  was  deceased 
at  the  time  of  the  execution  of  the  will.  But  he  determined 
that  such  was  the  intention  of  the  testator,  to  be  collected 
from  the  whole  will.  He  expressly  disclaimed  any  intention 
of  infringing  upon  the  general  rule.  Jarvis  v.  Pond  (9  Sim. 
R.  549)  was  determined  upon  the  intention  of  the  testator 
appearing  on  the  face  of  the  will,  and  also  to  make  the  will 
operative,  there  being  no  children  to  answer  the  term  "  daugh- 
ters," as  it  was  used,  except  the  issue  of  two  deceased  daugh- 
ters. 

In  the  will  of  Cornelius  Peterson  there  is  nothing  from 
which  such  an  intention  can  be  inferred.  The  testator  gives 
to  his  son,  by  name,  one  share  of  his  residuary  estate,  and  to 
his  "daughters"  one  share  each.  This  could  only  refer  to 
liis  daugJders  then  living.  He  provides  for  the  issue  of  a 
deceased  son,  and  their  representatives  as  a  distinct  class; 
then  he  declares,  "  if  in  the  course  of  human  evants  any  of 
my  children  should  die,"  referring  to  an  event  in  futuro. 

But,  on  behalf  of  the  appellant,  it  is  alleged  that  there 
was  a  mistake  on  the  part  of  the  testator  in  not  providing 


MAY  TERM,  1854.  199 


Brokaw  v.  Peterson. 


for  the  appellant,  and  that  he  meant  this  will  to  be  the  same 
in  this  respect  as  the  will  of  1845,  and  that  it  ought  not  to 
be  considered  as  his  last  will,  unless  it  is  taken  in  conjunc- 
tion with  the  will  of  1845 ;  that  by  the  will  of  1845,  the  ap- 
pellant was  provided  for ;  that  the  testator  did  not  intend  to 
alter  his  will  in  this  particular;  that  he  so  declared,  and 
that  the  will  of  1845  was  copied  without  the  testator's  being 
aware  of  the  fact,  that  the  change  of  circumstances  which 
had  occurred  by  the  death  of  his  daughter  Adeline  affected 
the  legal  construction  of  the  terms  used;  that  the  will  of 
1845  contained  his  instructions  to  the  scrivener,  and  that  those 
instructions  have  not  been  carried  out ;  and  that  unless  those 
instructions  are  admitted  as  part  of  his  will,  and  the  will 
made  to  conform  thereto  in  respect  to  the  appellant,  the  in- 
tention of  the  testator  will  be  defeated. 

The  proposition  is  a  plausible  one,  but  it  will  not  bear  the 
test  of  close  scrutiny,  and  cannot  be  established  without  vio- 
lating long  established  and  wholsome  principles  of  law. 

There  is  no  ambiguity  upon  the  face  of  this  will.  Its  lan- 
guage is  certain  and  precise,  and  the  terms  and  provisions 
free  from  any  doubt  as  to  construction.  The  objects  of  the 
testator's  bounty — the  property  devised — the  character  and 
extent  of  the  devises  and  bequests — are  all  free  from  am- 
biguity. There  is  no  necessity  of  introducing  parol  testimony 
to  explain  any  ambiguity,  either  patent  or  latent.  Nor  can 
this  will  be  touched  on  the  ground  of  fraud ;  for  it  is  not  pre- 
tended that  the  testator  was  even  advised  as  to  its  terms  or 
mode  of  execution.  There  was  no  mistake  as  to  any  fact; 
for  the  testator  was  well  acquainted  with  all  the  facts  which 
have  any  connection  with  the  property  the  subject  of  the 
devise  and  with  all  the  individuals  whom  he  made  the  ob- 
jects of  his  bounty.  There  was  no  mistake  in  the  scrivener, 
as  to  following  the  instructions  given  him  as  to  the  draft  of 
the  will.  He  obeyed  his  instructions  literally.  There  was 
nothing  said  to  the  scrivener  by  the  testator,  in  giving  the 
instructions,  to  indicate  that  the  legal  import  of  the  language 
which  he  directed  the  scrivener  to  employ  was  not  perfectly 


200  PREROGATIVE  COURT. 

Brokaw  v.  Peterson. 

understood  and  comprehended  by  the  testator.  We  have  the 
fact  that  a  will  was  executed  in  1845,  under  the  provisions  of 
which  the  appellant  would  have  been  entitled  to  a  portion  of 
the  testator's  estate.  In  1851  he  made  a  new  will.  It  is 
offered  to  prove,  and  it  is  proved,  that  prior  to  making  the 
last  will,  the  testator  declared  he  wanted  a  new  will  drawn, 
because  there  were  interlineations  and  misspelling  in  the  first 
will ;  that  he  wanted  to  make  a  change  in  the  valuation  of 
the  real  estate  he  had  devised  for  the  benefit  of  his  daughter 
Elizabeth,  and  to  change  the  devise  as  to  the  children  of  his 
son  Garret,  one  of  them  having  died.  The  declarations 
of  the  executors  and  of  the  different  devisees  under  the 
will  are  proved  to  show  that  they  always  supposed,  and  that 
they  believed  the  impression  of  the  testator  to  have  been, 
that  he  had  provided  in  this  will  for  his  infant  grandson. 
The  evidence  is  abundant  to  show  that  those  interested  in 
this  estate  should  never  have  compelled  this  appellant  to  re- 
sort to  litigation  to  secure  that  portion  of  this  estate  which 
it  is  perfectly  manifest  his  grandfather  intended  he  should 
enjoy ;  but  it  is  not  such  evidence  as  will  justify  me  in  giving 
the  appellant  any  relief  upon  this  appeal. 

It  is  true  that  a  court  of  probate  is  not  governed  by  the 
same  strict  rules  as  a  court  of  construction  in  reference  to 
the  admission  of  parol  evidence.  In  Castett  v.  Tagg,  1  Curt. 
298,  the  court  went  so  far  as  to  insert  in  a  will  a  legacy, 
which  by  mistake  had  been  omitted.  There  are  a  number  of 
cases  where  mistakes  made  in  preparing  the  will  have  been 
corrected.  1  Bradford's  Surrogate  Rep.  372. 

I  have  examined  with  great  care  all  the  authorities  relied 
upon  in  the  argument,  but  am  unable  to  find  a  warrant  in  any 
of  them  to  justify  me  in  relieving  the  appellant  in  the  present 
case.  In  Burger  v.  Hill,  1  Bradf.  Sur.  R.  360,  the  surro- 
gate certainly  went  very  far  in  admitting  evidence  and  in 
correcting  the  alleged  mistake.  Yet  that  case  is  distin- 
guishable in  principle  from  the  one  before  us.  The  testator 
devised  all  his  real  estate  to  his  mother  and  sister,  and  all 
his  personal  estate  to  an  illegitimate  daughter.  He  had  no 


MAY  TEEM,  1854.  201 

Brokaw  v.  Peterson. 

real  estate,  but  was  the  owner  of  a  store  in  Greenwich  street, 
which  was  in  fact  leasehold  estate.  He  told  the  scrivener 
who  drew  the  will  that  this  store  was  all  the  real  estate  he 
had,  and  the  scrivener,  instead  of  devising  the  store  eo  nomine 
to  the  mother  and  sister,  called  this  leasehold  estate  real  es- 
tate. The  surrogate  established  the  will  as  to  the  personalty 
except  as  to  the  leasehold  premises  given  to  the  mother  and 
sister.  It  will  be  perceived  that  the  surrogate  did  not  go  so 
far  as  to  correct  the  mistake  by  giving  the  leasehold,  as  the 
testator  intended,  to  the  mother  and  sister.  It  resulted  in 
this,  as  they  were  the  testator's  only  personal  representatives, 
and  entitled  to  his  personal  property. 

The  cases  cited  in  Fawcett  v.  Jones,  3  Phitt.  432,  1  Eng. 
Ecc.  jR.,  and  in  the  notes,  are  cases  of  fraud,  mistake,  or  ac- 
cidental omissions.  They  were  proved  not  merely  by  the 
declarations  of  the  testator  to  have  been  mistakes  or  omis- 
sions, but  by  the  written  instructions  or  memoranda  from 
which  the  wills  were  drawn,  or  by  the  scrivener  to  whose 
neglect  or  oversight  the  omissions  were  attributed.  Others 
are  cases  where  some  ambiguity,  apparent  on  the  face  of  the 
will,  and  parol  evidence  was  admitted  to  explain  it.  As  in 
the  case  of  Gerrard  v.  Gerrard,  referred  to  in  3  Phitt.  444, 
there  was  an  ambiguity  on  the  face  of  the  will :  the  words 
were,  "I  appoint  her  executrix  and  residuary  legatee."  In 
the  instructions  for  the  will  the  testator  had  directed  his  at- 
torney to  insert  his  wife  as  residuary  legatee.  In  transcrib- 
ing the  will  the  testator  had  not  noticed  the  blank  which  had 
been  left  by  the  attorney  for  the  insertion  of  the  wife's  name. 

My  conclusion  is,  that  the  will  of  1851  was  properly  ad- 
mitted to  probate  without  any  accompanying  explanation  or 
qualification. 


202  PREROGATIVE  COURT. 


Stackhouse  v.  Horton. 


FRANCIS  A.  STACKHOUSE  and  others  vs.  SILAS  HORTON  and 

others. 

In  questions  of  testamentary  capacity  the  abstract  opinion  of  any  witness, 
medical  or  of  any  other  profession,  is  not  of  any  importance.  No  judi- 
cial tribunal  would  be  justified  in  deciding  against  the  capacity  of  a  tes- 
tator upon  the  mere  opinions  of  witnesses,  however  numerous  or  respecta- 
ble. The  opinion  of  a  witness  must  be  brought  to  the  test  of  facts,  so 
that  the  court  may  judge  what  estimate  the  opinion  is  entitled  to. 

Testamentary  capacity  is  to  be  ascertained  by  the  court  by  the  application 
of  certain  rules  of  law  in  the  exercise  of  a  sound  discretion  regulated  by 
these  rules. 

A  monomaniac,  under  certain  circumstances,  may  make  a  valid  will. 

A  person  may  be  the  subject  of  a  partial  derangement  towards  a  particular 
individual,  and  this  derangement  may  be  the  cause  of  depriving  such 
individual  of  the  bounty  of  a  testator,  and  yet  a  will  made  by  such  per- 
son may  be  valid  ;  the  court  will  not  refuse  probate  to  such  will,  unless 
by  doing  so  the  person  concerning  whom  the  delusion  existed  will  be 
benefited. 

Costs  to  be  allowed  in  matters  of  probate. 


In  the  matter  of  proving  the  last  will  and  testament  of 
Esther  Horton,  deceased;  appeal  from  the  Orphans  Court  of 
the  county  of  Morris. 

J.  J.  Scojleld  and  Wfalpley,  for  appellants. 
T.  Little  and  A.  0.  Zabriskie,  for  appellees. 

THE  ORDINARY.  The  decedent,  Esther  Horton,  died  in 
February,  1852.  She  was  upwards  of  seventy  years  of  age. 
She  had  been  feeble  in  bodily  health  for  seven  or  eight  years 
prior  to  her  decease.  During  the  last  four  months  of  her 
life  her  decline  was  rapid.  Her  disease  was  an  affection  of 
the  lungs.  It  finally  assumed  the  shape  of  consumption,  of 
which  she  died.  For  the  last  three  years  of  her  life  she  was 
deprived  of  her  sight — most  of  that  period  totally  blind. 
Silas  Horton,  her  husband,  died  in  December,  1842.  There 
was  no  issue  of  their  marriage.  It  nowhere  appears,  in  the 


MAY  TERM,  1854.  203 


Stackhouse  v.  Horton. 


voluminous  testimony  taken,  what  relatives  Silas  Horton  left 
at  his  decease.  The  numerous  individuals  by  the  name  of 
Horton  mentioned  in  the  paper  offered  for  probate,  and  others 
by  that  name  connected  by  the  evidence  with  this  case,  are 
the  blood  relations  of  Esther  Horton.  Whether  they  were 
of  any  relationship  to  Silas  Horton,  deceased,  does  not  appear. 
Silas  Horton  died  seized  of  a  large  real  and  personal  estate. 
His  personal  property  was  inventoried  at  nearly  twenty-nine 
thousand  dollars.  Of  this  his  widow  received,  by  his  will, 
about  sixteen  thousand  dollars,  and  the  real  estate  devised  to 
her  is  valued  at  upwards  of  ten  thousand  dollars.  She  died 
seized  of  the  same  real  estate  devised  to  her  by  her  husband ; 
and  the  personal  property  which  she  received  under  the  will 
of  her  husband  accumulated  in  her  hands,  so  that  the  amount, 
at  the  time  of  her  death,  exceeded  twenty-one  thousand  dol- 
lars. The  disposition  made  by  her  of  this  real  and  personal 
property  by  the  paper  writing  propounded  for  probate  is  the 
origin  of  the  present  controversy. 

Esther  Horton  left  a  paper  writing,  bearing  date  the  13th 
day  of  January,  1852,  purporting  to  be  her  last  will  and  tes- 
tament; and  it  was  offered  for  probate  in  the  surrogate's 
office  of  the  county  of  Morris  by  Jacob  H.  Crammer  and 
William  Logan,  named  therein  as  executors.  Four  caveats 
were  filed.  One  by  Silas  Horton,  who  is  a  nephew  of  the 
decedent,  but  not  one  of  her  next  of  kin,  his  father,  Aaron 
Horton,  being  alive ;  Aaron  Horton,  a  brother  of  decedent ; 
Susan  McCollum,  a  sister,  and  Curtis  Coe,  a  nephew  aud  one 
of  the  next  of  kin,  each  filed  a  caveat. 

After  a  protracted  investigation  before  five  judges  of  the 
Orphans  Court  of  the  county  of  Morris,  that  court  (two  of 
the  judges  dissenting)  adjudged  and  decreed  that  the  instru- 
ment offered  for  probate  is  not  the  last  will  and  testament  of 
the  said  Esther  Horton,  deceased,  and  probate  thereof  was 
denied  by  the  court.  The  court  did  further  order  that  the 
costs  of  both  parties  to  the  litigation  before  them  should  be 
paid  out  by  the  estate.  The  court  taxed  the  costs  for  the 
services  of  the  judges  at  two  dollars  a  day,  each,  making 


204  PREROGATIVE  COURT. 

Stackhouse  r.  Horton. 

$690;  for  the  counsel  of  the  will  $1250;  and  for  the  coun- 
sel of  the  caveators  $1250.  The  surrogate's  fees  are  taxed  at 
$296,  including  $20  for  reading  the  depositions;  sheriff's 
fees  for  serving  citations  $21.64;  stationery  is  charged  $16.52. 
These  expenses  are  independent  of  the  witnesses'  fees,  which 
were  ordered  to  be  paid,  but  the  amount  of  which  I  do  not 
find  carried  out  in  the  bill  of  expenses.  The  whole  amount 
of  costs  is  nearly  four  thousand  dollars. 

From  these  orders  an  appeal  was  taken  to  this  court.  1 
must  determine  whether  the  Orphans  Court  was  right  in  re- 
fusing this  writing  probate;  and  it  is  my  further  duty  to 
decide  whether  the  costs  taxed  by  that  court  shall  be  paid  out 
of  the  estate. 

The  caveators  object  to  the  writing  offered  as  the  last  will 
and  testament  of  Esther  Horton,  as  follows,  on  the  ground — 

1st.  Of  the  general  incapacity  of  the  decedent  to  make  a 
will  at  the  time  of  the  execution  of  this  paper. 

2d.  That  if  of  sufficient  general  legal  capacity,  yet  the 
decedent  was  the  subject  of  monomania  in  reference  to  one 
of  her  relations,  who  had  claims  upon  her  bounty,  so  warp- 
ing her  affections  and  understanding  as  to  prevent  her  making 
a  disposition  of  her  property  in  conformity  with  her  real  affec- 
tions and  her  moral  obligations. 

3d.  That  the  execution  of  the  paper  was  the  result  of  im- 
proper influence  and  fraud. 

The  witnesses  who  express  opinions  unfavorable  to  the  ca- 
pacity of  the  decedent  to  make  a  will,  as  well  as  the  facts 
upon  which  their  opinions  are  based,  are  few,  notwithstand- 
ing the  unusual  amount  of  evidence  that  has  been  pressed 
into  the  case,  the  larger  part  of  it  wholly  irrelevant,  and 
which  should  not  "have  been  admitted  by  the  court.  It  is 
not  contended,  nor  was  any  effort  made  to  prove  that  the  de- 
cedent was  naturally  a  woman  of  feeble  intellect.  On  the 
contrary,  the  whole  evidence  taken  on  both  sides  shows  that 
she  possessed  at  maturity  rather  a  strong  mind.  She  was 
self-willed,  impetuous,  and  unusually  susceptible  to  preju- 
dices. She  had  an  opinion  of  her  own,  in  state  as  well  as 


MAY  TERM,  1854.  205 


Stackhouse  v.  Horton. 


domestic  affairs,  and  her  opinions  in  these  matters  were  nei- 
ther singular  or  erratic.  Her  business  capacities  are  abun- 
dantly proved  by  the  fact,  that  she  maintained  always,  even 
up  to  the  day  of  her  death,  the  control  and  management  of 
the  estate  left  her  by  her  husband,  selecting  her  own  agents  to 
aid  her  without  any  dictation  from  others,  and  herself  di- 
recting those  agents,  and  they  submitting  to  her  judgment, 
without  ever  questioning  its  propriety.  But  it  is  contended 
that  her  mind  began  to  fail  her  soon  after  the  death  of  her 
husband ;  that  from  that  time  her  body  began  to  yield  and 
give  way  to  a  slow  but  a  steady  and  wasting  disease,  and  that 
with  her  body  there  was  a  natural  decay  of  her  intellect, 
which  became  so  feeble,  during  the  last  few  months  of  her 
existence,  as  to  deprive  her  of  those  qualities  of  mind  which 
capacitated  her  for  the  important  duty  of  disposing  of  her 
property  by  a  last  will  and  testament. 

That  the  mind  of  the  decedent  was  broken,  impaired,  and 
shattered  by  disease,  is  beyond  question.  But  with  such  a 
standard  of  capacity,  very  few  who  had  reached  the  age  of 
three  score  and  ten  years  would  be  deemed  competent  to  make 
a  final  disposition  of  their  property.  Did  the  decedent  com- 
prehend the  act  she  was  performing?  And  was  her  mind 
strong  enough  to  form  a  fixed  intention,  and  to  summon  her 
scattered  and  enfeebled  thoughts,  so  as  to  enable  her  to  exe- 
cute that  intention?  If  she  did  not  comprehend  the  act,  or, 
if  comprehending  it,  she  could  not  control  the  feeble  faculties 
of  her  mind,  so  as  to  enable  her  to  execute  her  intention, 
then  she  was  not  capacitated  to  make  her  will ;  it  matters  not 
whether  such  incapacity  was  the  effect  of  a  disordered  or  an 
enfeebled  intellect.  But  although  the  numerous  authorities, 
in  our  own  and  other  courts,  touching  the  subject  of  testa- 
mentary capacity,  were  ably  reviewed  and  criticised  by 
counsel  in  this  case,  I  deem  it  unnecessary  to  do  more  than 
adopt  for  my  guide,  in  this  investigation,  the  rule  laid  down 
by  Judge  Washington,  in  Den  v.  Vancleve,  in  the  Circuit 
Court  of  the  United  States  for  this  district.  That  rule  has 
been  approved  and  acted  upon  by  my  predecessors ;  it  com- 

VOL.  II.  N 


206  PREROGATIVE  COURT. 

Stackliouse  ».  Ilorton. 

mends  itself  to  my  own  judgment,  and  I  do  not  feel  willing, 
nor  is  it  necessary  in  the  present  instance  to  question  its  pro- 
priety or  complain  that  it  is  not  sufficiently  rigid  in  the 
standard  it  fixes  for  the  mental  capacity  of  a  testator.  "  He 
must,"  in  the  language  of  the  law,  "  be  possessed  of  sound 
and  disposing  mind  and  memory.  He  must  have  memory;  a 
man  in  whom  this  faculty  is  totally  extinguished  cannot  be 
said  to  possess  understanding  to  any  degree  whatever  or  for 
any  purpose.  But  his  memory  may  be  very  imperfect;  it 
may  be  greatly  impaired  by  age  or  disease ;  he  may  not  be 
able  at  all  times  to  recollect  the  names,  the  persons,  or  the 
families  of  those  with  whom  he  had  been  intimately  ac- 
quainted; may  at  times  ask  idle  questions,  and  repeat  those 
which  had  before  been  asked  and  answered,  and  yet  his  un- 
derstanding may  be  sufficiently  sound  for  many  of  the  ordi- 
nary transactions  of  life.  He  may  not  have  sufficient  strength 
of  memory  and  vigor  of  intellect  to  make  and  to  digest  all 
the  parts  of  a  contract,  and  yet  be  competent  to  direct  the 
distribution  of  his  property  by  will.  This  is  a  subject  which 
he  may  possibly  have  often  thought  of,  and  there  is  probably 
no  person  who  has  not  arranged  such  a  disposition  in  his 
mind  before  he  committed  it  to  writing.  The  question  is  not 
so  much  what  was  the  degree  of  memory  possessed  by  the 
testator  as  this — had  he  a  disposing  memory?  Was  he  capa- 
ble of  recollecting  the  property  he  was  about  to  bequeath, 
the  manner  of  distributing  it,  and  the  objects  of  his  bounty? 
To  sum  up  the  whole  in  the  most  simple  and  intelligible 
form,  were  his  mind  and  memory  sufficiently  sound  to  enable 
him  to  know  and  to  understand  the  business  in  which  he  was 
engaged  at  the  time  he  executed  his  will  ?" 

Was  the  decedent  of  disposing  memory?  It  is  a  most 
singular  fact,  that  here  was  an  aged  female — you  may  with 
some  propriety  say  alone  in  the  world,  declining  in  health 
during  the  last  eight  years  of  her  life — managing  by  her 
own  judgment,  discreetly  and  most  successfully,  a  large 
landed  and  personal  property — transacting  business  with  in- 
dividuals in  all  situations  in  life — visiting  and  visited  by 


MAY  TERM,  1854.  207 


Stackhouse  v.  Horton. 


friends  near  and  distant — taking  a  deep  interest  and  min- 
gling in  neighborhood  affairs — participating  in  controversies, 
both  of  church  and  state — executing  five  different  wills,  and 
naming  in  each  of  them,  by  their  proper  names,  upwards  of 
twenty-six  blood  relations,  some  of  them  as  distant  as  grand- 
nephews  and  grand-nieces — and  yet,  in  the  volume  of  evi- 
dence taken,  not  one  single  instance  testified  to,  with  any  re- 
liable certainty,  where  she  manifested  even  an  inaccuracy  of 
memory.  It  is  true  it  was  argued,  that  having  made  no 
mention  in  her  will  of  any  of  the  seven  children  of  her  de- 
ceased sister,  Huldah  Coe,  while  all  others  of  her  living  sis- 
ters as  well  as  brothers,  and  the  representatives  of  such  as 
were  deceased,  are  remembered  and  referred  to,  is  evidence 
of  a  failure  of  memory,  even  as  to  those  who  were  proper 
objects  of  her  bounty.  But  the  same  omission  occurs  in  a 
will  which  she  executed  in  1843,  and  also  in  the  three  inter- 
mediate wills  between  that  and  the  one  now  propounded  for 
probate.  The  fact  of  the  omission  is  accounted  for.  Her 
sister,  Huldah  Coe,  left  this  part  of  the  country  more  than 
fifty  years  ago,  and  had  not  been  seen  by  the  decedent  during 
that  long  period ;  and  I  believe  there  is  no  evidence  of  her 
ever  having  even  seen  any  of  Mr.  Coe's  children,  except  one 
of  them,  Mrs.  Bennett.  Her  declarations  to  the  Rev.  Mr. 
Underwood,  that  it  never  was  the  intention  of  her  husband 
that  Silas  Horton  should  have  the  place,  and  that  it  had 
never  been  her  intention,  though  not  true  in  point  of  fact,  is 
easily  explained,  I  think,  in  a  more  plausible  manner  than 
by  attributing  to  her  any  failure  of  memory  in  these  par- 
ticulars. As  to  her  showing  a  want  of  memory  in  reference 
to  the  extent  of  her  estate  at  the  time  she  executed  the 
writing  in  question,  I  shall  have  occasion  to  refer  to  this  fact 
at  another  place  in  this  opinion,  I  will  only  say  here  I  do  not 
think  the  evidence  justifies  the  conclusion  attempted  to  be 
drawn  from  it. 

I  will  now  examine  the  particular  portions  of  the  evidence 
relied  upon  as  showing  the  incapacity  of  Esther  Horton  at 
the  time  she  executed  this  writing.  I  do  not  consider  it  out 


208  PREROGATIVE  COURT. 

Stackhouse  v.  Ilorton. 

of  place  for  me  to  say,  that  when  this  case  was  presented  on 
the  argument,  nor  since,  during  a  laborious  investigation 
which  the  importance  of  the  case  imposed  upon  me,  has  the 
slightest  doubt  ever  crossed  my  mind  as  to  the  capacity  of 
Mrs.  Horton  to  make  a  will  at  the  time  of  the  execution  of 
the  writing  in  question.  This  conviction  has  not  abated  nor 
embarrassed  my  efforts  in  endeavoring  to  arrive  at  the  truth 
of  this  case.  The  unusually  protracted  investigation  in  the 
Orphans  Court — the  decision  of  that  court  refusing  probate 
to  the  instrument — and  the  confidence  assumed  by  all  coun- 
sel on  the  argument — all  had  their  proper  influence  in  lead- 
ing me  not  to  rely  upon  my  first  impressions.  A  most  care- 
ful examination  of  the  whole  testimony  has,  however,  but 
confirmed  them. 

The  Rev.  Mr.  Underwood  was  the  first  witness  called  by 
the  caveators.  He  expresses  no  opinion  as  to  the  capacity 
of  the  decedent  to  make  a  will.  The  question  wras  not  asked 
him  by  either  party.  It  may  be  well  to  say  a  word  here  as 
to  the  weight  to  be  attached  to  the  opinions  of  witnesses 
on  the  subject  of  mental  capacity.  The  abstract  opinion  of 
any  witness,  medical  or  of  any  other  profession,  is  not  of  any 
importance.  No  judicial  tribunal  would  be  justified  in  de- 
ciding against  the  capacity  of  a  testator  upon  the  mere  opin- 
ions of  witnesses,  however  numerous  or  respectable.  A  man 
may  be  of  unsound  mind,  and  his  whole  neighborhood  may 
declare  him  so.  But  whether  that  unsoundness  amounts  to 
judicial  incapacity  for  the  discharge  of  the  important  duty  of 
making  a  final  disposal  of  his  property,  is  a  question  which 
the  court  must  determine  upon  its  own  responsibility.  It 
does  not  depend  upon  the  uncertain  or  fluctuating  opinions  of 
witnesses,  but  is  to  be  ascertained  by  the  court  by  the  appli- 
cation of  certain  rules  of  law  in  the  exercise  of  a  sound  dis- 
cretion regulated  by  these  rules.  How  many  in  the  commu- 
nity would  declare  a  millerite,  or  a  mormon,  or  an  abolition- 
ist unsound  in  mind?  The  opinion  of  a  witness  must  be 
brought  to  the  test  of  facts,  that  the  court  may  judge  what 
estimate  the  opinion  is  entitled  to.  It  is  proper  and  legal  to 


MAY  TERM,  1854.  209 


Sfackhouse  v.  Horton. 


ask  a  witness  his  opinion  as  to  the  mental  capacity  of  the 
individual  to  discharge  the  duty  in  question.  He  must  state 
the  facts  upon  which  his  opinion  is  based.  The  court  will 
judge  of  the  intelligence  of  the  witness  upon  the  subject  to 
which  he  testifies,  and  the  proper  weight  to  be  given  to  his 
opinion  from  the  facts  and  circumstances  upon  which  he 
founds  his  opinion. 

Had  Mr.  Underwood  testified  to  the  decedent's  incapacity, 
no  reliance  could  properly  have  been  .placed  on  his  judgment. 
.He  resided  some  fifty  miles  distant  from  her  neighborhood, 
and  had  not  seen  her  for  ten  years  prior  to  November,  1852. 
He  details  the  circumstances  of  an  interview  he  had  with 
her  in  the  month  last  named ;  and  so  far  from  the  facts  de- 
tailed by  him  having  a  tendency  to  bring  in  question  her 
mental  capacity,  they  show,  to  any  one  who  has  any  know- 
ledge of  the  character  of  the  woman,  a  mind  most  remarka- 
bly free  from  the  ravages  of  disease  and  old  age,  and  with 
a  quickness  and  shrewdness  to  accommodate  herself  to  the 
company  she  was  in,  rarely  to  be  found  in  one  in  her  situa- 
tion in  life.  She  comprehended  at  once  the  object  of  the 
visitor.  It  was  ostensibly,  and  perhaps  for  the  only  purpose 
of  speaking  to  her  upon  the  subject  of  her  religious  feelings. 
Worldly  matters  were,  frowever,  the  main  topics  of  conver- 
sation, and  absorbed  all  other  considerations.  When  the 
witness  thought  proper  gently  to  hint  at  the  judicious  .ar- 
rangement in  the  disposal  of  the  farm  on  which  she  lived, 
and  which  he  assumed  had  been  made  by  her,  it  induced 
some  remarks  from  her  from  which  the  conclusion  has  been 
attempted  to  be  drawn  that  her  memory  was  impaired.  She 
denied  warmly  that  it  was  ever  the  intention  of  her  late  hus- 
band to  give  the  farm  to  Silas  Horton,  or  that  such  wras  ever 
her  own  intention.  This  was  not  true,  either  in  respect  to 
her  late  husband  or  herself.  But  the  further  conversation 
upon  the  subject,  drawn  out  by  the  remarks  of  Mr.  Under- 
wood in  reply,  shows  very  plainly  not  that  the  denial  she  had 
made  was  to  be  attributed  to  a  decay  or  failure  of  memory, 
but  exhibited  her  fixed  determination  that  she  would  not  be 


210  PREROGATIVE  COURT. 

Stackhouse  r.  Horton. 

influenced  in  the  disposition  of  her  property,  and  that  she 
well  understood  the  neighborhood  interest  that  existed  in  re- 
ference to  this  subject.  I  cannot  discover,  in  the  interviews 
Mr.  Underwood  had  with  her,  the  slightest  evidence  of  fee- 
bleness of  intellect.  Her  memory  did  not  fail  her  in  any 
particular,  although  their  conversations  embraced  a  variety 
of  subjects.  Distant  friends  were  spoken  of,  and  in  her  in- 
quiries respecting  them  she  exhibited  a  strong  mind,  a  memory 
unimpaired,  and  good  sense.  She  inquired  of  the  Rev.  Mr. 
Hewson,  who  resided  in  Madison,  if  he  was  a  friend  of  the 
Union.  The  witness  asked  what  she  meant,  if  she  meant 
that  he  was  a  friend  of  the  fugitive  slave  law;  that  he  sup- 
posed one  might  be  a  friend  of  the  Union,  and  not  be  a 
friend  of  the  fugitive  slave  law,  and  presumed  that  Mr.  Hew- 
son  was  not  a  friend  of  the  fugitive  slave  law,  but  was  a 
friend  of  the  Union.  She  replied  that  she  did  not  see  how 
that  could  be.  This  opinion  was  consistent  with  her  well 
known  and  uniform  political  views.  She  exhibited  her  pride, 
her  self-conceit,  her  prejudices.  They  were  all  consistent 
with  her  natural  disposition  and  character.  They  showed,  in 
the  language  of  another  witness  while  speaking  of  her  still 
later  in  life,  that  she  was  Mrs.  Horton  still. 

Doct.  Samuel  "Willet  was  Mrs.  Horton's  physician  the  last 
nine  years  of  her  life,  and  attended  her  constantly  during 
her  last  sickness.  He  is  the  most  important  witness  in  oppo- 
sition to  the  will,  and  his  testimony  is  justly  entitled  to  great 
consideration.  He  says  the  decedent  was  a  woman  of  good 
mind — she  was  blind  the  last  three  or  four  years  of  her  life, 
the  natural  effect  of  which  was  to  make  her  disposition  irri- 
table; her  disease  would  not  have  that  effect,  nor  was  it  cal- 
culated to  disturb  her  mind ;  it  was  chronic  bronchitis,  which 
turned  to  consumption,  and  terminated  in  her  death.  He  says 
that,  during  the  last  two  or  three  months  of  her  life,  she  be- 
came more  irritable  and  restless,  and  that  during  "her  poorly 
turns"  she  would  be  a  little  delirious  at  times.  This  he  dis- 
covered several  times — once  in  particular  about  the  23d  of 
January.  When  asked  to  state  how  she  manifested  this  de- 


MAY  TERM,  1854.  211 


Stackhouse  v.  HorUm. 


lirium,  his  reply  was,  that  "  she  appeared,  when  speaking,  to 
forget  the  subject  she  was  upon,  and  spoke  on  different  sub- 
jects; her  mind  appeared  to  be  wandering,  wishing  testate 
something,  and  could  not  recollect  what  she  wanted  to  ex- 
press." Again,  he  says,  "  she  appeared  at  all  times  to  be  very 
forgetful — some  little  derangement  every  poorly  turn — some- 
times two  or  three  weeks  would  intervene.  I  could  not  at 
any  time  depend  upon  her  answers  to  questions  put  to  her. 
On  asking  Mrs.  Horton  a  question,  I  would  look  at  the  nurse. 
If  Mrs.  Horton  answered  the  question  correctly,  she  would 
signify  it  by  a  nod  of  the  head ;  this  was  in  the  latter  stage 
of  her  case,  the  principal  part  of  the  month  of  January." 

Several  significant  questions  were  put  to  the  doctor  as  to  the 
mental  capacity  of  the  decedent,  and  in  order  fully  to  appreci- 
ate the  answers,  it  is  requisite  to  have  the  relative  questions 
and  answers  in  juxta- position.  He  was  asked — "  Q.  From  the 
examination  you  made  of  her,  as  her  physician,  and  from  your 
observatioti  of  the  effect  of  her  disease  upon  her,  had  she  or 
not,  in  your  opinion,  at  any  time  after  the  first  of  December, 
A.  D.  1851,  a  sound  and  disposing  mind  and  memory?  A.  I 
could  not  say,  from  the  examination  I  made,  that  she  had  a 
sound  mind,  and  her  memory  was  defective,  or  deficient,  I 
meant.  Q,.  Had  she,  or  not,  in  your  opinion,  sufficient  mind 
and  memory  to  understand  the  relative  situation  of  her  con- 
nections, and  the  general  extent  and  value  of  her  property, 
during  the  last  two  or  three  months  of  her  life?  A.  From 
the  questions  put,  and  the  answers  received,  during  the 
months  of  October  and  November,  her  mind  and  memory 
were  not  good,  or  were  more  deficient,  I  ought  to  have  said, 
than  they  were  three  months  previous ;  and  in  the  months  of 
December  and  January  the  change  of  mind  and  memory  had 
been  still  more,  or  was  still  more  deficient.  Q.  Had  the 
change  of  mind  and  memory,  in  your  opinion,  during  the 
months  of  December  and  January,  been  such  that  she  could 
or  could  not  understand  the  relative  situation  of  her  con- 
nections, and  the  general  extent  and  value  of  her  property  ? 
A.  I  should  suppose,  in  her  situation,  it  would  be  very  diffi- 


212  PREROGATIVE  COURT. 

Stackhonse  v.  Horton. 

cult  for  her  to  recollect  all  her  connections,  and  to  make  a 
correct  estimate  of  her  property." 

Upon  these  answers  of  Doct.  Willet  no  judicial  tribunal 
would  be  justified  in  deciding  against  the  general  capacity  of 
the  decedent  to  make  a  will.  His  testimony  is  only  to  the 
effect,  that  at  times  she  was  delirious;  that  her  mind  was 
unsound  and  her  memory  deficient.  But  it  is  not  a  mere 
unsoundness  of  mind,  or  a  memory  impaired,  that  constitute 
that  mental  incapacity  which  will  deprive  a  person  of  dis- 
posing of  his  property.  In  the  rigid  examination  of  Doct. 
Willet  there  is  110  fact  stated  by  him  to  show  that  the  dece- 
dent's mind  or  memory  was  permanently  impaired.  It  is 
true  there  was  delirium  and  a  defect  of  memory,  but  only 
temporary  in  their  character.  In  her  extreme  sickness  her 
mind  was  wandering,  and  the  only  defect  of  memory  which 
the  doctor  specifies  is,  that  he  could  not  depend  upon  her 
answers  to  the  questions  as  to  her  health  and  pains,  ordina- 
rily put  by  a  physician  to  his  patient.  No  instance  of  for- 
getfuluess,  as  to  her  numerous  family  connections  and  friends, 
or  of  the  neighborhood  matters,  in  which  she  had  manifested 
a  deep  interest,  and  which  were  the  frequent  topics  of  her 
conversations,  is  mentioned  by  the  doctor  or  by  any  one  else. 
On  cross-examination,  Doct.  Willet  says:  "This  slight  deli- 
rium that  I  spoke  of  was  produced  by  fever  or  febrile  action, 
and  passed  off  as  the  fever  declined." 

But,  in  addition  to  all  this,  Doct.  Willet  testifies  as  to  the 
situation  of  the  decedent  on  the  very  afternoon  that  she  exe- 
cuted this  paper,  and  proves  conclusively  that,  according  to 
the  estimate  he  made  of  her  character,  she  was,  in  the  eye 
of  the  law,  capable  of  making  a  will.  While  Judge  Logan 
was  drafting  the  will,  Doct.  Willet  went  in.  The  decedent 
had  then  been  up  for  several  hours  engaged  in  preparing  and 
consulting  about  the  paper.  When  the  doctor  went  in,  he 
said  something  about  intruding.  Mrs.  Horton  said  he  was 
not,  and  asked  him  to  take  a  chair.  He  asked  her  how  she 
was,  and  felt  her  pulse.  He  says,  "I  did  not  think  she  had 
any  fever  when  I  examined  her ;  her  pulse  was  feeble,  and  I 


MAY  TERM,  1854.  213 


Stackhouse  v.  Horton. 


advised  her  to  take  wine.  I  was  certain  she  had  no  fever 
when  1  examined  her.  I  did  not  discover  anything  different 
in  her  appearance  at  that  time.  I  did  not  discover  anything 
like  delirium  in  the  few  minutes  that  I  was  in  the  room." 

I  consider  Doct.  Willet  a  strong  witness  in  support  of  Mrs. 
Horton's  capacity,  at  the  time,  to  make  a  will.  It  is  true, 
he  says,  he  considered  her  insane  in  reference  to  certain 
church  matters.  If  he  was  right  in  this,  there  were  many 
more  insane  persons  in  that  neighborhood  besides  Mrs.  Hor- 
ton. But  I  think  I  may  safely  say  there  is  room  for  two 
opinions,  not  only  as  to  whether  Mrs.  Horton  was  insane,  but 
whether  she  was  right  or  wrong  in  her  judgment  as  to  the 
church  difficulties  referred  to.  But  I  shall  have  occasion,  in 
another  part  of  the  case,  to  refer  to  these  matters. 

Lydia  Ann  Coleman,  another  witness  against  the  probate, 
testifies  to  several  instances  to  show  the  unsoundness  of  mind 
of  the  decedent.  For  the  first  time,  in  the  fall  of  the  year 
before  decedent's  death,  she  noticed  something  strange  and 
out  of  the  way,  and  she  details  the  circumstance  as  follows: 
"  Last  fall  was  the  first  that  I  noticed;  we  were  on  a  ride  to 
the  plains ;  she  wanted  that  I  should  stop  the  horses ;  I  done 
so,  and  asked  her  what  she  wanted;  she  asked  me  where  I 
was  taking  her  to ;  I  told  her  to  the  plains ;  she  said  I  was 
not,  that  I  was  taking  her  in  the  woods — she  said  she  had 
one  girl  drive  her  in  the  woods  to  murder  her  or  to  rob  her 
— it  was  with  difficulty  that  got  her  to  go  any  further;  she 
insisted  on  going  back,  and  sat  for  some  time  before  I  could 
get  her  to  go  any  way ;  she  finally  concluded  to  go  to  the 
plains.  She  would  repeat  over  a  line  out  of  tlie  bible,  and 
then  one  out  of  the  hymn  book,  and  in  a  few  minutes  she 
would  spell  a  word,  and  then  put  one  out  for  me  to  spell." 
The  witness  mentions  two  other  instances  of  supposed  aber- 
ration of  mind — one  in  which  the  old  lady  insisted  that  a 
Sharon  tree,  which  had  formerly  stood  by  the  corner  of  the 
house,  was  a  dahlia,  and  had  been  destroyed  by  her  nephew 
and  his  wife ;  and  the  other,  in  which  she  insisted  that  her 


214  PREROGATIVE  COURT. 

Stackhouse  v.  Horton. 

nephew  had  grown  so  thin  as  to  become  a  mere  skeleton  in 
appearance. 

Admitting  these  instances  of  unsoundness  of  mind  in  all 
their  force,  and  without  any  explanation,  they  only  show 
temporary  derangements,  transitory  in  their  nature,  and  very 
far  removed  from  that  degree  of  unsoundness  of  mind  which 
will  disqualify  the  individual  from  the  exercise  of  a  testament- 
ary privilege.  But  in  connection  with  the  fact  that,  in  a 
life  of  more  than  seventy  years,  these  are  the  only  instances 
in  which  similar  peculiarities  of  insanity  were  exhibited,  and 
these  before  one  witness  only,  they  throw  no  light  upon  the  sub- 
ject we  are  investigating.  They  look  to  me  more  like  sallies 
of  pleasantry  on  the  part  of  Mrs.  Horton  than  the  evidences 
of  her  insanity  of  mind. 

Thomas  K.  Leek  saw  the  decedent  on  the  26th  or  27th  of 
December  preceding  her  death.  She  sent  for  him  to  come 
and  see  her.  She  wanted  to  lease  to  him  her  farm  on  which 
she  resided.  They  had  considerable  conversation  together 
upon  that  and  other  subjects.  She  said  or  did  nothing  which 
the  witness  relates,  during  the  interview,  to  lead  any  intelli- 
gent man  to  doubt  her  sanity.  The  witness  however,  says, 
that  he  made  no  bargain  with  her  about  the  farm,  because 
he  did  not  consider  her  at  that  time  capable  of  doing  busi- 
ness. Upon  being  cross-examined,  the  witness  admitted 
that  immediately  after  his  interview  with  the  old  lady,  upon 
being  asked  why  he  did  not  take  the  farm,  the  reason  he 
gave  was  that  he  could  not  make  a  satisfactory  arrangement 
about  the  farm  house.  He  admits,  that  in  conversing  with 
his  neighbors  upon  the  subject  of  the* interview,  he  never  gave 
the  reason  for  not  taking  the  farm,  now  for  the  first  time  al- 
leged in  his  examination.  He  never  expressed  his  opinion 
to  any  one  of  the  incapacity  of  Mrs.  Horton  at  that  time,  or 
that  the  interview  lie  had  with  her  excited  any  such  suspicion 
in  his  mind  upon  the  subject. 

Elisha  Skil linger,  another  witness  of  the  caveators,  ap- 
pears to  be  a  man  of  intelligence,  and  one  whose  position 
towards  Mrs.  Horton  would  afford  him  some  opportunity  of 


MAY  TERM,  1854.  215 


Stackhouse  v.  Horton. 


forming  an  opinion  as  to  the  state  of  her  mind.  Speaking  of 
an  interview  with  her  in  January  preceding  her  death,  he  does 
not  venture  the  opinion  that  she  was  not  of  sufficiently  sound 
mind  and  memory  at  that  time  to  make  a  will.  The  furthest 
he  is  willing  to  go  is  to  say,  that  he  thought,  at  the  time, 
that  she  was  not  in  a  condition  to  reason  clearly,  and  like- 
wise that  she  was  strongly  prejudiced.  Mr.  Skillinger  dif- 
fered with  her  in  church  matters.  They  belonged  to  different 
parties  in  the  church.  He  Avent  to  reason  with  her  upon 
these  difficulties,  and  to  disabuse  her  mind  in  reference  to 
some  of  them,  in'regard  to  which  he  supposed  she  had  con- 
ceived wrong  impressions.  After  a  long  and  exciting  conver- 
sation, in  which  she  exhibited  much  feeling,  the  judgment  of 
the  witness,  as  to  her  mental  faculties,  was  that  of  an  intelli- 
gent and  judicious  man — not  that  she  was  insane,  but  that 
she  was  greatly  prejudiced,  and  not  in  a  condition  to  reason 
clearly.  The  testimony  of  this  witness  is  very  important. 
The  time  he  speaks  of  was  two  or  three  days  before  the  de- 
cedent signed  the  writing  in  dispute.  It  is  the  same  time  at 
which  Lydia  Coleman  represents  her  as  most  feeble  in  mind 
and  body.  The  evidence  of  Mr.  Skillinger  shows  that  the 
great  debility  of  body  and  weakness  of  mind,  which  Lydia 
Coleman  represents  Mrs.  Horton  to  have  exhibited  at  this 
time,  must  have  existed  only  at  intervals.  The  long  and  ex- 
citing conversation,  or  controversy  it  may  most  properly  be 
called,  which  Mr.  Skillinger  refers  to  as  having  taken  place, 
was  calculated  to  try  the  nerves,  aud  the  strength  both  of 
body  aud  mind.  It  is  impossible  that  there  could  have  been 
any  permanent  decay  of  memory,  and  not  have  exhibited 
itself  then.  Matters  of  an  exciting  character,  running  through 
a  period  of  eight  years,  were  talked  over  and  discussed. 
Men  and  their  transactions  were  named  and  talked  about, 
and  yet  the  witness  does  not  mention  or  intimate  that  Mrs. 
Horton  betrayed  the  least  weakness  of  memory  or  any  evi- 
dences of  insanity.  There  is  much  satisfaction  in  meeting 
with  a  witness  like  this.  His  feelings  are  one  way,  but  he 


216  PREROGATIVE  COURT. 

Stackhouse  v.  Horton. 

remembers  his  resj)onsibility  as  a  witness,  and  will  not  permit 
his  judgment  to  be  warped  by  his  partialities. 

There  were  seven  other  witnesses  examined  against  the 
will.  They  are  witnesses  whose  opportunity  of  judging  as  to 
the  decedent's  capacity  was  by  no  means  as  good  as  that  of 
the  witnesses  we  have  particularly  referred  to;  they  state  no 
facts  of  importance,  and  I  do  not  think  it  necessary,  there- 
fore, to  examine  their  evidence. 

Upon  a  careful  examination  of  all  the  evidence  offered  by 
the  caveators  against  the  probate,  I  do  not  think  there  is  a 
doubt  cast  upon  the  general  capacity  of  the 'decedent  to  make 
a  will  at  the  time  this  paper  was  executed. 

The  evidence  of  the  witness  to  the  execution  of  the  paper 
propounded,  and  that  of  other  witnesses  examined  to  support 
the  decedent's  capacity,  is  most  satisfactory  and  conclusive  on 
the  point.  Three  witnesses  were  present  at  the  execution  of 
the  writing — the  three  subscribing  witnesses,  and  Judge  Logan, 
one  of  the  two  individuals  named  as  executors.  Judge  Logan 
was  objected  to  as  incompetent  when  offered  as  a  witness 
before  the  Orphans  Court.  The  objection  was  overruled,  and 
his  testimony  was  taken,  and  reduced  to  writing  with  that  of 
the  other  witnesses  examined.  No  objection  was  made  to 
reading  his  evidence  on  this  appeal ;  indeed,  it  was  used  and 
relied  upon  by  the  appellees  to  sustain  their  views  of  the  case. 
I  am  not  called  upon,  therefore,  to  decide  whether  a  person 
who  is  named  as  executor  in  a  will  is  competent  as  a  general 
witness  to  sustain  it  upon  a  caveat  filed  against  its  admission 
to  probate. 

It  is  hardly  necessary  for  me  to  advert  to  the  particulars 
of  the  testimony  of  the  witnesses  upon  the  subject  of  capa- 
city. The  facts  and  circumstances  they  state  prove,  as  clearly 
as  the  fact  could  be  established  by  human  testimony,  that 
Esther  Horton,  at  the  time  she  executed  the  paper,  was  of 
sound  and  disposing  mind  and  memory.  There  is  no  way  of 
avoiding  the  conclusiveness  of  their  testimony  upon  this  sub- 
ject, except  by  impeaching  it ;  and  that  impeachment  cannot 
be  by  charging  the  witnesses  with  forgetfuluess,  inaccuracy, 


MAY  TERM,  1S54.  217 

Stackhouse  v.  Horton. 

or  by  being  biassed  by  partiality  or  prejudice,  but  must  con- 
vict them  of  the  grossest  dishonesty.  The  counsel  met  the 
case  boldly,  and  relied  for  success  upon  establishing  the  dis- 
honesty of  every  one  of  the  subscribing  witnesses,  and  of 
Judge  Logan,  who  drew  the  will. 

Who  are  these  witnesses? 

William  Logan  and  Nathan  A.  Cooper  are  men  who  have 
long  since  passed  the  meridian  of  life.  They  have  always 
enjoyed  the  confidence  of  the  community  in  which  they  lived. 
They  have  occupied  places  of  trust  under  the  state  govern- 
ment. They  have,  each  of  them,  by  a  long  life  of  integrity 
and  usefulness,  earned  for  himself  a  good  name.  William 
Logan  takes  nothing  under  this  will  except  as  executor,  and 
neither  Nathan  A.  Cooper  or  any  of  his  connections  or 
friends  are  directly  or  indirectly  benefited  by  it.  John  Van- 
doren  and  William  I.  Topping,  though  men  in  an  humbler 
sphere  of  life,  are  of  good  and  honest  report.  They  are  all 
of  them  now  charged,  not  only  with  perverting  the  truth, 
but  of  entering  into  a  most  dishonest  and  wanton  combina- 
tion. And  what  is  charged  as  the  reward  of  their  iniquity? 
As  to  one  of  them,  the  mere  gratification  of  revengeful  feel- 
ings for  a  supposed  injury  toward  one  of  the  objects  of  the 
decedent's  bounty.  As  to  the  other,  the  paltry  commissions 
of  an  executorship ;  and  as  to  the  others,  no  motive  can  be 
imagined. 

The  general  character  of  these  witnesses  is  not  impeached ; 
but  it  is  said  that  the  testimony  of  each  of  them  is  inconsist- 
ent and  contradictory  in  itself,  and  that,  in  detailing  the  par- 
ticulars of  the  same  occurrence,  they  contradict  each  other. 
I  have  been  unable,  after  a  most  careful  scrutiny  of  the  evi- 
dence given  by  these  witnesses,  and  of  the  particulars  in  which 
it  is  alleged  the  contradictions  and  inconsistencies  exist,  to  de- 
tect anything  calculated  to  excite  a  suspicion  that  either  of 
them  is  not  entitled  to  the  most  implicit  confidence.  There 
are,  it  is  true,  apparent  contradictions;  but  they  are  such  as 
not  in  the  slightest  degree  impeach  the  integrity  of  the  wit- 
nesses. Four  honest  men,  in  detailing  the  particulars  of  a 


218  PREROGATIVE  COURT. 

Stackhouse  v.  Horton. 

transaction,  which  lasted  several  hours,  might  naturally  be 
expected  to  make  like  variations  in  their  account  of  what  took 
place.  In  the  leading  facts  they  all  agree.  In  immaterial 
matters  and  in  the  order  of  occurrences  there  is  some  variance. 
There  is  enough  for  criticism,  but  not  enough  to  excite  any 
surprise  that  honest,  or  even  accurate  men  should  have  made 
them. 

To  the  question — state  what  occurred,  after  you  got  there 
— what  was  said  and  done  by  you  and  Mrs.  Horton,  as  near 
the  order  in  which  it  occurred  as  you  can  recollect  it — Judge 
Logan  repl  ied : 

A.  When  I  was  about  to  commence  the  writing  of  the  will, 
Mrs.  Horton  said  that  she  then  knew  more  about  what  her 
property  was  worth  than  when  I  wrote  a  former  will  for  her; 
then  asked  me,  if  I  could  tell  the  amount  of  the  inventory  that 
was  taken  of  Mr.  Hortou's  property  at  the  time  of  his  decease  ; 
I  told  her  that  I  could  not  tell  exactly,  but  that  I  had  an  im- 
pression that  it  was  about  twenty-nine  thousand  dollars ;  I  said 
to  her,  that  if  she  wanted  to  know  the  exact  amount  of  that  in- 
ventory, if  Mrs.  Stackhouse  would  open  the  secretary,  I  would 
get  the  inventory,  and  know  the  true  amount;  I  found  the 
inventory,  and  stated  to  Mrs.  Horton  the  exact  amount ;  she 
then  said  it  is  as  /,  or  as  we  supposed,  I  am  not  certain  which 
she  said ;  she  then  said  that  her  property  was  considerably 
more  than  she  knew  it  to  be  when  she  made  her  last  will, 
and  that  she  should  give  it  to  more  heirs  than  were  named 
in  her  last  will ;  I  then  asked  her  who  the  additional  heirs 
were  to  be;  she  told  me  that  there  was  a  lady  living  in 
New  York  that  had  been,  when  she  was  young,  much  in  her 
family,  but  that  she  was  now  married;  that  she  had  always 
been  a  particular  friend  of  the  family,  and  she  wished  to 
give  her  five  hundred  dollars ;  she  said  she  had  a  sister  residing 
in  York  state  that  she  wished  to  give  one  hundred  dollars — 
she  said  her  name  was  Susan  McCollum  ;  she  said  that  she  had 
had  another  sister  that  was  residing  in  York  state,  but  that  she 
wa-s  deceased,  and  had  left  children ;  I  asked  her  how  many 
children  that  sister  left,  and  what  were  their  names ;  she  said 


MAY  TERM,  1854.  219 


Stackhouse  v.  Horton. 


tliey  were  the  children  of  her  sister,  Rebecca  Fortlyce  ;  I  asked 
her  how  many  children  there  were,  and  what  were  their  names 
— she  told  me  she  did  not  know  how  many  children  there  were, 
nor  what  were  their  names,  but  she  believed  there  were  four, 
and  she  wished  them  to  have  a  hundred  dollars  a-piece ;  she 
then  directed  me  to  divide  four  hundred  dollars  equally  be- 
tween the  children  of  her  deceased  sister;  she  then  said  that 
she  wished  to  give  to  each  of  her  brothers  one  hundred  dollars ; 
I  asked  her  whether  she  wished  to  increase  or  diminish  any  of 
her  former  bequests  to  any  of  the  persons  named  in  her  former 
will ;  she  said  she  did  in  the  case  of  Phoebe  Robeson,  her  niece ; 
she  said  that  she  was  satisfied  that  she  had  given  her  much 
more  than  she  intended  to — that  she  intended  to  give  her  less 
than  she  gave  her  sister,  Mrs.  Atwood  ;  she  was  satisfied  that 
the  will  would  give  her  much  more ;  I  asked  her  if  that  was 
the  only  change  that  she  wanted  to  make  from  her  other  will ; 
she  said,  give  to  my  other  heirs  the  sums  that  now  is  named : 
I  don't  recollect  of  any  other  particular  conversation  until  I 
commenced  writing  the  will ;  there  had  been  nothing  said  at 
all  in  relation  to  her  real  estate  during  this  conversation : 
when  I  commenced  writing  the  will,  and  came  to  that  part 
devising  the  real  estate,  I  said  to  Mrs.  Horton,  I  devise  this 
real  estate  the  same  as  in  this  will  (alluding  to  a  former  will 
that  was  then  lying  on  the  table) ;  she  replied  no — I  think  it 
best  not  to  give  the  farm  to  that  little  girl ;  that  she  was  a 
going  to  give  her  two  thousand  dollars  in  money,  but  she 
did  not  think  it  was  fit  for  her  to  have  the  farm  ;  she  then 
said  that  she  was  going  to  give  the  farm  to  the  two  sons  of 
Mrs.  Budd,  her  niece;  I  then  went  on  and  made  the  devise, 
and  read  it  to  Mrs.  Horton ;  she  says  no,  it  is  not  right ;  she 
says,  I  only  intended  to  give  them  this  farm,  and  you  have 
given  them  all  my  lands ;  I  then  said  I  was  not  aware  that 
there  was  any  out-lands ;  she  said  there  was  a  lot,  and,  I  think, 
i  named  the  number  of  acres — I  think  twelve,  lying  near  Mr. 
Leek's  that  she  wished  to  give  Archibald  Horton ;  I  then 
took  another  sheet  of  paper,  left  the  one  that  1  was  writing 
on,  and  commenced  and  wrote  the  will  that  is  here ;  during  the 


220  PREROGATIVE  COURT. 

Stackhouse  ».  Horton. 

writing  of  the  will,  when  I  had  devised  the  real  estate  to  these 
two  young  men,  I  read  it  to  Mrs.  Horton,  and  she  said  it 
was  right;  I  then  inquired  of  her  who  this  out-lot  was  bounded 
by,  to  get  some  description  of  it;  she  said  it  was  bounded  by 
lands,  I  think,  of  Nathan  A.  Cooper  and  Mr.  Leek,  and  it  ap- 
pears to  me  she  mentioned  some  other  person ;  Mrs.  Horton 
said  it  would  be  a  suitable  lot  for  Archibald  to  build  a  shop 
upon  ;  that  he  had  been  wanting  to  get  a  lot  on  that  street  to 
build  upon ;  she  said,  however,  that  she  wanted  to  give  it  to 
him  and  his  children  ;  she  did  not  want  him  to  have  power  to 
sell  it,  as  there' was  a  person  in  the  neighborhood  that  wanted 
to  buy  it,  and  she  did  not  want  that  person  to  have  it ;  after 
devising  to  Archibald  as  it  is  in  the  will,  I  read  it  to  her;  she 
said  that  was  right,  as  she  wished  it  to  be ;  I  then  went  on  and 
finished  the  remaining  part  of  the  will,  giving  the  personal 
property  as  in  the  will,  but  I  read  it  to  her  in  portions  several 
times  as  I  went  along,  as  she  would  inquire  of  me  what  I  had 
said,  or  what  language  I  had  used  in  certain  devises ;  I  then 
would  read  to  her  what  I  had  written  ;  after  the  will  was 
finished,  I  then  read  it  to  her  as  a  whole  (except  signing 
it) ;  Mrs.  Horton  then  requested  Judge  Cooper  to  go  and  get 
the  witnesses  that  have  subscribed  the  will;  some  time  after 
they  came  in  (I  don't  know  how  long)  the  will  was  executed 
by  Mrs.  Horton,  and  I  left  soon  after ;  I  would  add,  that  I  took 
the  will  home  with  me,  at  Mrs.  Horton's  request — she  re- 
quested me  to  do  so,  and  I  done  it ;  after  the  will  was  exe- 
cuted, I  took  three  former  wills,  that  had  been  placed  in  my 
hands  by  Mrs.  Horton,  and  placed  the  wills  in  the  hands  of 
Mrs.  Horton;  when  I  placed  the  wills  in  the  hands  of  Mrs. 
Horton,  she  said,  why,  I  directed  you  to  destroy  two  of  these 
wills;  I  told  her  that  I  knew  she  did,  but  we  were  alone 
when  she  told  me  so,  and  that  I  had  taken  them  home,  and 
had  brought  them,  and  they  were  all  there  at  her  disposal ; 
she  then  told  me  to  throw  them  upon  the  fire,  and  burn  them 
up,  and  I  done  so;  after  they  had  been  upon  the  fire  until 
they  were  consumed,  she  inquired  if  they  were  burned ;  one 
of  the  gentlemen  in  the  room  replied  they  were  in  ashes; 


MAY  TERM,  1854.  221 


Stackhouse  v.  Horton. 


she  then  said,  "  now  I  am  satisfied,"  or  well  satisfied,  I  don't 
recollect  which  expression  it  was;  I  don't  recollect  anything 
that  took  place  there  after  burning  of  the  will — I  think  I  left 
immediately ;  when  the  gentlemen  came  in  they  were  evi- 
dently very  cold,  for  it  was  a  blustering  cold  night;  as  soon 
as  they  had  warmed  a  little,  Mr.  Vandoren  and  Mr.  Topping, 
I  think  both,  went  and  shook  hands  with  Mrs.  Horton ;  Mr. 
Vandoren  inquired  particularly  about  her  health;  she  told 
him  that  she  was  much  better  than  she  had  beon  ;  she  laughed 
and  said,  "  Mr.  Vandoren,  I  am  about  what  you  might  call 
comfortably  sick ;"  I  suppose  she  then  said  that  she  was  able 
to  be  up  through  the  day,  and  had  a  tolerably  good  appetite, 
and  her  cough  was  not  so  bad  as  it  had  been ;  she  said  to  him 
that  she  was  sorry  to  give  him  so  much  trouble  in  coming 
there  to  witness  her  will,  and  that  she  was  willing  to  pay 
him  for  the  trouble;  after  some  further  conversation  between 
Mr.  Vandoren  and  Mr.  Topping  and  Mrs.  Horton — the  sub- 
ject of  that  conversation  I  don't  know  what  it  was — it  was, 
some  neighborly  talk,  I  think — I  supposed  they  had  then 
got  warm — I  then  took  up  the  will,  and  laid  it  on  her  lap,  or 
her  hands,  as  they  lay  in  her  lap — I  said  to  her,  here  Mrs. 
Horton  is  your  will  that  I  have  read  to  you,  and  here  are  the 
gentlemen  that  you  have  sent  for  to  witness  it — arc  you  ready 
to  execute  it ;  she  replied  yes,  but  had  you  not  better  read  it 
to  me  again,  for  it  is  sometime  since  I  heard  it;  I  replied  to 
her  that  I  would,  if  she  so  requested,  but  I  supposed  the  will 
contained  what  she  would  not  want  to  make  public;  she  re- 
plied that  it  did,  and  that  if  I  was  sure  I  had  read  it  to  her 
as  it  was,  it  would  be  better  not  to  read  it  again,  and  that  she 
was  ready  to  execute  it :  she  then  said  that  she  could  not  write 
her  name ;  I  told  her  that  I  was  aware  of  that,  and  that  her 
mark  would  answer  just  as  well ;  she  then  asked  me  if  I  would 
prepare  the  will  for  her  mark,  and  steady  her  hand  while  she 
made  it;  I  told  her  I  would,  and  went  to  the  table  and  wrote 
"Esther  Horton,  her  mark,"  as  it  now  appears  in  the  will ;  I 
think  I  then  took  a  book  on  which  I  placed  the  will,  took  it 
to  Mrs.  Hortoii  with  a  pen,  which  I  placed  in  her  hand;  she; 
VOL.  n.  o 


222  PREROGATIVE  COURT. 

Stackliou.se  v.  Horton. 

then  asked  me  to  guide  her  hand  to  where  I  wanted  her  to 
make  her  mark ;  I  done  so,  and  after  she  had  made  her  mark, 
she  inquired  if  it  was  plain;  I  told  her  that  it  was  plain 
enough ;  while  the  will  was  in  that  position,  I  asked  Mrs. 
Horton  if  she  published  and  declared  that  to  be  her  last  will 
and  testament  in  the  presence  of  the  gentlemen  that  were 
there,  and  if  it  was  her  wish  that  they  should  subscribe  it  as 
witnesses — she  replied  that  it  was;  she  then  said,  "now  I  am 
satisfied,  and  shall  expect  you  to  see  my  intentions  in  that  will 
carried  out;  I  would  here  say,  that  when  Mr.  Cooper  left  for 
the  witnesses,  I  then  took  the  will  and  my  chair,  and  sat  down 
by  the  side  of  Mrs.  Horton ;  I  said  to  her,  Mrs.  Horton,  you 
have  heard  this  will  read  several  times,  but  we  are  now  alone, 
and  I'll  read  it  to  you  again  slowly  and  distinctly,  and  see  if 
there  is  no  change  that  you  wish  made  in  it ;  I  done  so ;  I 
read  it  very  slow  and  very  distinctly ;  when  I  got  through  I 
asked  her  if  there  was  anything  that  suggested  itself  to  her 
mind  that  she  wished  changed ;  she  replied  no,  it  was  as  she 
wished  it;  I  then  asked  her  if  she  would  not  go  and  lay 
down,  supposing  she  was  tired ;  she  replied  no,  that  she  waa 
not  tired,  and  that  she  had  got  accustomed  to  sleeping  in  her 
chair ;  and  I  advised  her  to  go  to  sleep,  if  she  could,  and  I 
would  take  a  book  and  read  till  the  witnesses  came  back ;  I 
sat  down  by  the  table,  and  she  soon  went  to  sleep,  or  I  sup- 
posed she  did,  and  I  supposed  she  slept  nearly  all  the  time 
that  Mr.  Cooner  was  gone. 

In  addition  to  this,  the  witness  states  many  other  particu- 
lars, and  gives  a  great  deal  of  conversation  of  Mrs.  Horton, 
all  confirming  the  opinion  of  the  witness,  that  she  was  at  the 
time  of  disposing  mind  and  memory.  No  one,  perhaps,  had 
BO  good  an  opportunity  of  forming  a  correct  judgment  upon 
this  question  as  he.  He  had  been  and  was  her  confidential 
agent  and  friend  for  more  than  seven  years,  had  drawn  three 
prior  wills  for  her,  and  was  well  acquainted  with  her  temper, 
disposition,  and  peculiarities. 

The  testimony  of  Logan  and  of  the  subscribing  witnesses  is 
strongly  corroborated  by  facts  and  circumstances  not  contro- 


MAY  TERM,  1854.  223 

Stackhouse  v.  Horton. 

verted  by  the  caveators.     With  a  brief  reference  to  these  facts, 
I  shall  close  this  part  of  the  case. 

This  will  was  not  made  in  a  corner;  there  was  not  the 
slightest  concealment  about  its  execution.  The  business  was 
transacted  under  the  very  roof  of  the  man  who  is  loudest 
in  his  complaints  against  it,  and  whose  connection  with  and 
interest  in  the  transaction  has  doubtless  occasioned  this 
controversy.  That  there  had  been  a  change  in  the  old 
lady's  feelings  towards  her  nephew,  Silas  Horton,  was  well 
understood  in  the  whole  neighborhood.  She  did  not  conceal 
it  from  him,  or  his  family,  or  friends.  It  was  a  matter  of 
solicitude  with  them  all ;  and  there  is  enough  in  the  case  to 
show  that  the  change  the  decedent  has  made  in  her  will  re- 
specting her  nephew  caused  no  surprise.  The  reason  for  this 
change  was  frequently  given  by  the  decedent.  She  said  the 
family  did  not  treat  her  well.  Whether  her  complaint  was 
well  founded,  it  is  unnecessary  to  inquire.  That  she  had  reason 
to  complain  of  their  neglect  is  very  clear  from  the  evidence. 
Several  days  prior  to  the  execution  of  this  paper,  she  had 
fixed  the  day  when  the  business  was  to  be  transacted.  Mr. 
Cooper  was  to  send  for  Judge  Logan,  and  they  were  to 
attend  to  the  business.  Before  noon,  Mr.  Cooper  drove  up 
to  her  door.  Jane  Crammer,  a  witness  against  the  will,  says 
she  was  visiting  Mrs.  Horton ;  she  looked  out  of  her  window, 
and  saw  Mr.  Cooper,  and  told  her  that  Mr.  Cooper  was 
hitching  his  horses;  she  then  said  she  would  want  the  room 
to  herself  that  afternoon,  thus  showing  her  recollection  of 
the  engagement  she  had  made  several  days  previous,  and 
her  readiness  to  enter  upon  the  important  duty  of  her  ap- 
pointment. Soon  after  the  arrival  of  Mr.  Cooper  Judge  Lo- 
gan arrived,  and  these  two  were  occupied  there  the  whole 
afternoon,  engaged  all  the  time  in  the  preparation  of  this 
paper.  Doct.  Willet  found  them  there  engaged  in  the  business 
— he  seemed  to  understand  its  character;  expressed  no  sur- 
prise then  or  at  any  other  time ;  found  the  old  lady  entirely 
free  from  fever  or  excitement ;  gave  her  some  stimulant  to 
brace  her  for  the  occasion,  and  then  left. 


224  PREROGATIVE  COURT. 

Stackbouse  v.  Horton. 

No  witness  examined  ever  expressed,  and  I  think  I  may 
say  with  propriety,  ever  entertained  a  doubt,  until  after  the 
death  of  Mrs.  Horton,  of  her  competency  to  transact  her  busi- 
ness or  to  make  a  will.  Her  personal  property,  amounting, 
as  has  before  been  stated,  to  upwards  of  $25,000,  was  in  obli- 
gations of  different  amounts  against  individuals  scattered 
through  the  country.  Her  business  transactions  were  neces- 
sarily large.  She  managed  them  all  herself  up  to  the  day 
of  her  death ;  she  invested  her  money,  and  collected  the  in- 
terest, and  all  her  debtors  transacted  their  business  with  her 
as  a  matter  of  course.  Some  of  them  are  witnesses  in  the 
case.  They  dealt  with  her  at  all  times  as  perfectly  compe- 
tent to  transact  business,  and  a  single  instance  is  not  testified 
to  where  the  slightest  mistake  was  ever  made  by  her.  She 
was  her  own  receiver  and  her  own  paymaster ;  indeed,  in  her 
business  transactions  she  was  a  most  remarkable  woman. 
She  kept  a  day-book  of  original  entries  up  to  within  a  few 
days  of  her  death,  using  such  friends  to  make  the  entries,  from 
day  to  day,  as  happened  to  be  at  hand.  She,  on  account  of 
her  blindness,  was  unable  herself  to  make  the  entries,  but 
they  were  all  made  under  her  own  dictation,  without  the 
control  or  advice  of  any  person.  The  last  entries  were  made 
in  the  day-book  on  the  4th  of  February,  1852.  On  that  day 
there  are  two  entries — one  of  $2,  to  Doct.  "Wilier,  for  medical 
attendance,  and  the  other  of  §1,  for  medicines.  This  was  only 
a  day  or  two  before  her  decease.  This  day-book  shows  all 
the  moneys  she  received*,  from  whom,  and  on  what  account, 
and  all  her  disbursements  down  to  the  particulars  of  payments 
made  for  postage.  As  an  instance  of  her  particularity,  it  was 
her  practice  to  pay  the  physician  for  every  visit,  as  he  made 
it.  Doct.  Willet  says,  it  was  only  occasionally  that  this  was 
neglected,  and  when  it  was,  the  omission  was  always  sup- 
plied at  the  next  visit. 

In  this  case  there  is  nothing  like  dementia  of  old  age  pre- 
tended. Recent  impressions  and  events  seem  to  have  had 
as  firm  a  hold  upon  her  mind  as  ordinarily  with  individuals 
much  less  advanced  in  life.  Persons  and  events  of  early  years 


MAY  TERM,  1854.  225 


Stackhouse  v.  Horton. 


were  not  stamped  upon  her  mind  to  the  exclusion  and  oblit- 
eration of  later  impressions.  Indeed  that  loss  of  energy  in 
some  of  the  intellectual  operations  which  is  the  concomitant  of 
old  age  was  scarcely  noticeable  in  her,  and  her  case,  in  this 
respect,  is  a  most  remarkable  one. 

The  second  objection  interposed  to  admitting  the  writing  to 
probate  is,  that  the  decedent  was  the  subject  of  monomania, 
towards  her  nephew,  Silas  Horton. 

We  have  already  considered  the  subject  of  the  general  ca- 
pacity of  the  decedent,  and  have  reached  the  conclusion  of 
her  general  competency.  There  was  no  general  derange- 
ment, then,  of  the  intellectual  faculties  indicating  a  mania 
rendering  the  subject  incompetent  to  make  a  will.  Our  in- 
quiry must  now  be  limited  to  the  consideration  of  the  propo- 
sition, which  the  caveators  have  undertaken  to  establish,  that 
Esther  Horton  was  the  subject  of  a  partial  derangement  of 
the  mental  powers  affecting  her  relation  to  her  nephew,  Silas 
Horton,  to  such  a  degree  as  to  incapacitate  her,  in  the  eye 
of  the  law,  from  making,  by  will,  a  final  disposition  of  her 
property. 

In  examining  this  question,  it  is  important  that  we  should 
consider  the  connection  which  existed  between  Esther  and 
Silas  Horton,  and  ascertain  how  the  fact  of  Esther  Horton's 
partial  derangement,  confined  to  her  nephew,  can  legally 
affect  the  disposition  of  the  decedent's  estate;  for  a  person 
may  be  a  monomaniac-^the  subject  of  a  partial  derangement 
towards  a  particular  individual — and  this  derangement  may 
be  the  cause  of  depriving  such  individual  of  the  bounty  of  a 
testator,  which  he  otherwise  would  have  enjoyed,  and  yet  the 
will  be  valid  and  obnoxious  to  no  principle  of  law.  Instance 
the  case  of  an  individual  having  two  sons,  his  only  heirs-at- 
la\v,  and  a  nephew,  to  whom  he  is  under  peculiar  moral  obli- 
gations to  leave  a  liberal  portion  of  his 'estate.  He  acknow- 
ledges his  obligation,  and  he  intends  that  this  nephew  shall 
be  an  object  of  his  bounty,  and  shall  share  with  his  legal 
heirs  his  whole  property.  He  suddenly  conceives  the  notion 
that  this  nephew  has  become  a  king,  or  an  inheritor  of  itn- 


226  PREROGATIVE  COURT. 

Stuekhouse  v.  I  lor  ton. 

mense  wealth,  and  under  this  vain  delusion  he  makes  his  will, 
leaving  his  whole  estate  to  his  sons,  to  one  of  them  two-thirds, 
tand  the  remaining  third  to  the  other,  the  proportion  between 
the  two  sons  being  in  no  wise  affected  or  having  no  connec- 
tion with  the  delusion  towards  the  nephew.  Can  the  validity 
of  such  a  will  be  questioned.  Cui  bono  f  Not  by  the  nephew. 
The  delusion,  it  is  true,  has  lost  to  him  a  valuable  estate ; 
but  the  interposition  of  a  court,  by  refusing  probate  to  the 
will,  cannot  make  him  an  heir-at-law  or  a  participator  in  the 
inheritance.  Nor  can  the  son  who  takes  the  lesser  portion  of 
the  estate  impeach  the  will,  for  the  delusion  in  no  way 
affected  the  disposition  made  to  him. 

In  this  case,  if  Esther  Horton  was  under  a  moral  obligation 
to  make  her  nephew,  Silas  Horton,  a  devisee  or  legatee  under 
her  will,  but  was  prevented  doing  so  by  an  insane  delusion 
which  had  seized  upon  her  mind,  and  which  was  confined  to 
Silas  Horton  alone,  the  court  will  not  refuse  probate  to  the 
will  on  that  account,  unless,  by  doing  so,  it  can  restore  Silas 
Horton  to  a  position  which  he  has  lost  by  the  intervention 
of  the  instrument.  Silas  Horton  is  not  an  heir-at-law  of  the 
decedent.  The  inquiry  is  therefore  a  proper  one,  what  in- 
terest has  Silas  Horton  in  the  question ;  and  as  to  the  other 
caveators,  did  the  delusion,  if  any  existed  toward  Silas  Hor- 
ton, affect  in  any  way  the  dispositions  made  by  the  decedent 
of  her  property  in  respect  to  them. 

Esther  Horton  was  under  some  obligation  to  devise  the 
farm  which  she  received  by  will  from  her  husband  to  Silas 
Horton.  Her  husband  had  given  instructions  to  the  scrivener 
to  draw  his  will,  and  to  leave  the  farm  to  his  wife's  nephew, 
Silas.  The  will  was  prepared  agreeable  to  such  instructions. 
It  was  altered,  in  the  particular  referred  to,  upon  the  solici- 
tations of  Esther  Horton,  and  she  assured  her  husband  that 
she  would  leave  the  farm  to  Silas.  She  intended,  until  within 
a  few  months  of  her  decease,  to  fulfil  this  promise.  Admitting 
that  she  conceived  in  her  mind  an  unfounded  delusion  toward 
Silas,  amounting  to  such  a  partial  derangement  of  her  intel- 
lectual faculties  as  to  obliterate  all  obligation  she  was  under 


MAY  TERM,  1854.  227 


Stackhouse  v.  Horton. 


towards  him,  and  to  deprive  her  of  her  right  reason  in  every- 
thing connected  with  him,  how  can  this  partial  derangement 
disturb  this  paper  writing  as  her  last  will  and  testament? 
Silas  Horton  is  not  one  of  her  heirs-at-law.  If  this  writing  is 
not  admitted  to  probate,  Esther  Horton  died  intestate.  There 
is  no  other  paper  offered  for  probate  as  her  last  will.  It  is 
true  she  did  execute  other  papers  prior  to  the  one  in  question. 
But  they  were  all  cancelled.  They  are  not  offered  for  proof ; 
and  this  court  is  bound  to  decide  upon  this  paper  as  involv- 
ing the  question  as  to  whether  the  testator  died  intestate  or 
not.  There  is  no  other  paper  that  this  court  can  now  estab- 
lish as  the  last  will  of  Esther  Horton,  except  the  one  in 
dispute.  There  is  no  other  set  up  or  propounded  as  her  last 
will.  It  will  therefore  be  of  no  avail  or  benefit  to  Silas  Hor- 
ton for  this  court  to  declare  that  such  delusion  and  de- 
rangement as  is  alleged  did  exist.  Does  any  one  else  show 
that  such  delusion  affected  his  interest  in  the  decedent's 
estate  ? 

Susan  McCollum,  who  caveats  against  this  paper,  is  a 
sister  of  decedent.  It  is  proved  that  Esther  Horton's  state 
of  mind  towards  Silas  has  in  no  manner  affected  her  interest. 
She  gets  by  this  will,  if  sustained,  $100.  By  four  other  wills, 
executed  by  the  decedent  and  cancelled,  one  as  early  as 
1843,  nothing  was  given  to  this  sister.  Aaron  Horton,  a 
brother  and- heir-at-law,  gets  $100  by  this  will.  Nothing 
had  been  given  him  by  any  of  the  prior  wills.  Curtiss  Coe, 
another  heir-at-law,  being  one  of  the  children  of  a  deceased 
sister,  who  also  has  filed  a  caveat,  takes  nothing  by  this  will. 
Neither  he,  his  mother,  nor  any  of  the  family  had  been  men- 
tioned in  any  of  the  wills  of  decedent.  It  is  proved,  as  clearly 
as  any  such  fact  can  be  established,  that  the  feelings  of  Es- 
ther Horton  towards  her  nephew  did  not  in  any  manner  af- 
fect these  caveators.  I  feel  perfectly  satisfied  in  coming  to 
the  conclusion,  that  if  the  derangement  or  monomania  towards 
Silas  Horton  did  exist,  as  contended  for,  it  is  no  objection  to 
admitting  this  writing  to  probate. 
'•i  But  did  any  such  derangement  of  mind  or  monomania 


228  PREROGATIVE  COURT. 

Stackhouse  v.  Horton. 

pervade  the  mind  of  the  decedent  as  would,  under  any  cir- 
cumstances, have  incapacitated  her  from  making  a  will  ? 

It  is  important,  in  investigating  such  a  question,  to  dis- 
tinguish between  unreasonable  and  unfounded  prejudices  and 
a  derangement  of  miud.  In  the  ejectment  suit  which  turned 
upon  Greenwood's  will,  Lord  Kenyon,  in  his  charge  to  the 
jury,  to  be  found  in  Curteis'  EGG.  Rep.  vol.  3,  appendix,  says 
— "  a  multitude  of  instances  there  have  been  where  men  have 
taken  up  prejudices  against  their  nearest  and  dearest  rela- 
tions; it  is  the  history  of  every  week  in  the  year,  and  the 
history  of  almost  every  family,  at  one  time  or  other,  that 
harsh  dispositions  have  been  made — that  unreasonable  pre- 
judices have  taken  place — that  one  child,  standing  equally 
near  in  blood  has  been  preferred  to  another ;  and  if  once  we 
get  into  digressions  of  that  kind,  then  we  get  upon  a  sea  with- 
out a  rudder.  Where  will  you  stop?  What  partiality  will 
be  enough  to  set  aside  a  will?  And  what  partiality  will  you 
give  way  to,  and  say  the  will  is  good  ?  These  are  questions 
which  the  most  correct  and  acute  mind  that  ever  addressed 
himself  to  the  consideration  of  questions  will  not  be  able  to 
eettle." 

It  is  alleged  that  Mrs.  Horton  was  deranged  in  reference 
to  church  matters ;  that  she  conceived  the  notion  that  Silas 
Horton  was  combining  with  the  Rev.  Mr.  Stoutenburgh,  the 
pastor  of  the  Congregational  church  at  Chester,  and  was 
squandering  certain  funds  which  had  been  left  to  the  church 
by  her  husband;  that  he  and  the  Rev.  Mr.  Stoutenburgh  were 
changing  the  platform,  as  it  is  called,  of  the  church,  and  de- 
stroying its  usefulness. 

Was  all  this  a  mere  delusion  ?  did  it  exist  only  in  her  im- 
agination, or  was  there  some  foundation  for  the  belief  she  en- 
tertained? For,  if  there  was  actual  ground  for  suspicion  of 
an  injury,  though  in  fact  not  well  founded,  and  disbelieved  by 
others,  the  misapprehension  of  the  fact  will  not  l>e  considered 
mental  delusion,  and  a  will  made  by  a  party  affected  by  such 
suspicion  may  be  valid.  Greenwood's  case,  13  Ves.jun.  89; 


MAY  TERM,  1854.  229 


Stackhouse  v.  Horton. 


3  Bro.  C.  C.  444;   Den  v.  Clark,  1  Add.  274;   3  Add.  209; 
Heath  v.  Watts,  Prerog.  1798,  Dekg.  1800. 

There  was  a  feud  in  this  church,  in  which  Mrs.  Horton 
took  a  part.  The  pastor  of  the  congregation  insisted  that  a 
colored  clergyman  from  Newark  should  be  permitted  to 
preach.  To  this  there  was  great  opposition,  and,  with  many 
others,  Mrs.  Horton  was  greatly  excited,  and  took  part  against 
her  clergyman.  Nathan  A.  Cooper,  who  was  then  the  trea- 
surer of  the  congregation,  and  Mrs.  Horton  belonged  to  the 
same  party.  Silas  Horton  joined  the  party  of  the  Rev.  Mr. 
Stoutenburgh.  The  aunt  and  the  nephew  thus  became  es- 
tranged. In  February,  1851,  Nathan  A.  Cooper  was  dis- 
placed as  treasurer,  and  Silas  Horton  elected  in  his  place. 
This  widened  the  breach,  and  these,  with  other  matters  con- 
nected with  the  subject,  induced  the  belief  in  Mrs.  Horton's 
mind  that  they  were  ruining  the  church.  As  to  squandering 
the  funds,  the  history  of  that  matter  is  this,  the  husband  of 
decedent  had,  by  his  will,  bequeathed  a  legacy  of  $3000  to 
this  church,  with  instructions  "  that  it  should  be  placed  at 
interest,  secured  by  bond  and  mortgage  on  real  estate,  and 
the  interest  thereof  appropriated  towards  the  supporting  of 
the  preaching  of  the  gospel  in  said  church."  When  this  fund 
was  received,  Nathan  A.  Cooper  was  elected  treasurer,  and 
took  charge  of  the  fund.  This  fund  had  been  infringed  upon 
to  the  amount  of  several  hundred  dollars,  and  the  deficiency 
has  never  been  made  up.  When  Nathan  A.  Cooper  was 
turned  out  as  treasurer,  and  Silas  Horton  took  his  place,  Mrs. 
Horton  entertained  the  belief  that  they  were  squandering 
this  fund  of  $3000  left  to  the  church  by  her  husband.  AVho 
has  a  right,  under  such  circumstances,  to  say  that  the  con- 
viction upon  Mrs.  Horton's  mind  in  reference  to  these  matters 
was  the  evidence  of  insanity  or  derangement?  Whether  her 
judgment  was  right,  or  her  conclusion  reasonable,  is  not  the 
question.  But  is  it  at  all  singular  that,  under  the  excitement 
existing  in  that  congregation  in  reference  to  these  matters, 
she  formed  the  judgement  that  she  did  ?  Was  not  the  cause 
adequate  to  the  effect,  and  cannot  the  conclusion  she  arrived 


230  PREROGATIVE  COURT. 

Stackhouse  v.  Horton. 

at  he  accounted  for  upon  the  rational  operations  of  the  human 
mind?  Without  expressing  my  own  opinion  as  to  her  judg- 
ment of  the  course  taken  in  reference  to  the  introduction  of 
a  colored  person  into  the  pulpit,  I  think  I  may  safely  say,  if 
it  is  evidence  of  insanity,  more  than  three-fourths  of  the 
people  of  the  state  could  easily  be  found  insane.  And  as  to 
her  judgment  upon  the  use  that  the  trustees  were  making 
of  the  funds  of  the  church,  and  its  consequences,  it  was  no 
evidence  of  derangement  of  mind,  unless  it  can  be  shown 
that  it  is  irrational  to  form  or  express  an  opinion  unfavor- 
able to  a  clergyman  or  an  officer  of  a  church.  From  the 
evidence  before  me,  I  cannot  say  that  Mrs.  Horton  showed 
either  a  want  of  judgment  or  of  good  sense  in  relation  to  these 
church  matters. 

As  to  the  declaration  of  Mrs.  Horton,  that  Silas  was  not 
a  good  farmer;  that  he  was  suffering  the  fences  on  the  farm  to 
go  to  ruin,  and  other  like  declarations,  they  are  all  accounted 
for  from  the  fact  of  the  excitement  in  church  matters,  and 
from  her  feelings  toward  Silas  in  consequence  of  the  part  he 
had  taken  in  them.  There  is  nothing  in  the  objection,  that 
Esther  Horton,  at  the  time  she  executed  this  writing,  \vas  the 
subject  of  monomania  towards  her  nephew,  and  that  the 
paper  offered  for  probate  was  the  result  of  such  a  derange- 
ment of  mind. 

The  only  further  objection  to  probate  is,  that  the  writing 
was  produced  by  undue  influence,  and  should  be  rejected  on 
that  account. 

This  influence  is  alleged  to  have  been  exerted  by  Nathan 
A.  Cooper.  He  has  no  interest  in  the  question  of  the  will  of 
the  decedent.  The  motive  attributed  for  the  allleged  influ- 
ence is  to  gratify  his  malignity  towards  Silas  Horton.  Na- 
than A.  Cooper  and  Silas  Horton  were  opposed  to  each  other 
in  church  matters,  and  the.  latter  supplanted  the  former  as 
treasurer  of  the  church.  From  these  facts,  the  inference  is 
first  to  be  drawn  that  Nathan  A.  Cooper  cherished  a  con- 
cealed spirit  of  revenge  against  Silas  Horton,  for  there  is  no 
evidence  to  show  that  they  were  not  on  apparently  friendly 


MAY  TEEM,  1854.  231 


Stackhouse  v.  Horton. 


terms,  or  that  Nathan  A.  Cooper  ever  said  or  did  anything 
openly  that  exhibited  anything  like  malice  or  revenge  towards 
Silas  Horton. 

Such  influence,  if  any  was  exerted,  must  amount  to  fraud. 
Nothing  less  can  vitiate  the  instrument.  Facts  are  relied 
upon  from  which  it  is  asked  that  fraud  may  be  inferred.  It 
is  proved  that  a  difference  existed  between  Nathan  A.  Cooper 
and  Silas  Horton ;  that  Esther  Horton  was  involved  in  the 
controversy,  and  that  she  took  sides  with  Cooper;  that  she 
and  Cooper  were  on  most  friendly  and  intimate  terms ;  that 
he  visited  her  some  four  or  five  times  during  the  three  months 
immediately  preceding  the  execution  of  the  writing;  that 
three  days  prior  to  its  execution  he  made  her  a  visit,  and  an 
arrangement  was  then  made  for  the  meeting,  when  the  will 
was  executed ;  that  he  was  present  with  Judge  Logan  and 
Mrs.  Horton  while  the  paper  was  drawn;  that  he  went  after 
two  of  the  subscribing  witnesses,  and  with  them  witnessed 
the  instrument.  It  is  proved  that  she  declared,  upon  two  or 
three  occasions,  that  Cooper  furnished  her  with  a  copy  of 
the  "  negro  resolutions,"  as  they  are  denominated  in  the  evi- 
dence, and  that  he  told  her  that  the  Rev.  Mr.  Stouten  burgh 
was  squandering  the  church  funds.  There  is  no  proof  that 
she  at  any  time  consulted  with  him  as  to  the  disposition  of 
her  property,  or  that  he  ever  advised  her  to  make  the  dis- 
position of  it  she  did  ;  that  he  ever  spoke  to  her  about  Silas 
Horton  in  reference  to  her  estate,  or  unkindly  about  him  in 
reference  to  any  other  subject.  There  is  no  proof  that  he 
ever  at  any  time  said  one  word  to  her  that  influenced  her  in 
the  disposition  of  her  property.  Judge  Logan  testifies  that 
Mr.  Cooper  was  there  during  the  whole  afternoon  while  the 
will  was  being  drawn,  but  that  he  was  not  consulted,  and  that 
he  did  not  give  any  advice,  or  interfere  in  any  way  with  the 
business.  There  is  no  evidence  to  justify  the  belief  that  Mr. 
Cooper  exerted  any  improper  influence  over  Mrs.  Horton  in 
reference  to  the  disposal  of  her  property  or  the  execution 
of  this  paper.  He  had  a  right  to  advise  her,  if  his  advice 
was  asked.  He  was  her  friend  and  neighbor.  If  he  did 


232  PREROGATIVE  COURT. 

Anderson  v.  Berry. 

advise  her,  it  is  not  to  be  presumed  that  he  deceived  her,  or 
took  an  undue  advantage  of  his  friendly  position.  No  such 
inference  can  fairly  be  drawn  from  the  facts  proved  in  this 
case.  I  feel  bound  to  say,  in  justification  of  Mr.  Cooper,  that 
there  is  nothing  proved  in  this  case  that  ought  for  a  moment 
to  shake  any  one's  confidence  in  him  as  an  honest  man.  There 
is  not  the  slightest  ground  for  the  objection  to  the  probate, 
that  the  instrument  was  procured  by  improper  or  undue  in- 
fluence exerted  by  Nathan  A.  Cooper. 

As  to  the  costs,  the  order  made  by  the  court  upon  the  ad- 
ministrator pendente  lite  for  the  fees  of  the  judge  cannot  be 
sustained.  By  law,  the  extent  of  compensation  allowed  the 
judges  is  $50  each,  and  no  larger  amount  can  lawfully  be 
taken  out  of  the  estate.  If  there  is  any  agreement,  as  the 
order  sets  out,  entitling  them  to  a  larger  amount,  they  must 
look  to  the  parties  who  made  the  agreement.  After  letters 
testamentary  are  issued,  the  executors  must  allow  to  the  ad- 
ministrator pendente  lite  no  larger  amount  than  $50,  each,  for 
the  judges.  The  charge  of  $20  to  the  surrogate  for  reading 
the  depositions  is  not  warranted  by  law,  and  is  disallowed.  In 
paying  the  costs  and  expenses,  the  appellants  and  executor 
must  be  allowed  their  expenses,  taxed  costs,  and  reasonable 
counsel  fees.  The  executors  must  first  charge  them  upon 
the  residuary  estate,  and  make  up  the  deficiency  out  of  the 
legacies  to  the  caveators.  If  any  further  deficiency,  the  other 
legacies  must  abate  proportionably. 


DAVID  I.  ANDERSON  and  others,  executors  of  JOHN  ANDER- 
SON, deceased,  appellants,  vs.  MARIA  BERRY  and  others, 
respondents. 

An  appeal  will  lie  from  order  of  Orphans  Court  fixing  the  amount  of  ex- 
ecutor's commissions. 

This  is  a  constitutional  right,  and  the  legislature  has  not  the  power  to 
abridge  or  take  it  away. 

But  the  Prerogative  Court  will  not  exercise  its  jurisdiction  to  review  the 


MAY  TERM,  1856.  233 

Anderson  v.  Berry. 

decision  of  the  Orphans  Court  in  a  matter  of  this  kind,  ezcept  in  case  of 
a  manifest  error  in  judgment. 

Where  the  amount  of  commissions  allowed  the  executors  is  grossly  inade- 
quate, it  is  the  duty  of  the  Ordinary  to  substitute  his  own  judgment,  and 
exercise  his  own  discretion  upon  the  subject  matter. 


H.  A.  Williams  and  A.  8.  Pennington,  for  appellants. 
A.  0.  Zabriskie,  for  appellees. 

THE  ORDINARY.  This  is  an  appeal,  taken  by  the  execu- 
tors of  the  last  will,  &c.,  of  John  Anderson,  deceased,  from 
a  decree  of  the  Orphans  Court  of  the  county  of  Bergen,  in 
the  statement  and  allowance  of  their  account.  The  only 
matter  of  complaint  is  as  to  the  allowance  of  commissions. 
The  executors  had  previously  settled  their  accounts  relating 
to  the  general  administration  of  the  estate  of  the  testator. 
In  the  settlement  of  that  account,  commissions  \vere  allowed 
the  executors,  and  with  that  allowance  no  dissatisfaction  is 
expressed,  and  from  it  no  appeal  was  taken.  By  the  will  of 
John  Anderson,  the  duty  was  imposed  upon  the  executors  of 
collecting  certain  rents  in  the  city  of  New  York.  As  to  the 
collection  and  disbursements  of  these  rents,  the  executors 
very  properly  make  annual  settlements  with  the  Orphans 
Court.  In  the  year  1853,  they  collected  $18,034.13.  Out 
of  this  amount  they  paid  the  taxes,  insurance,  &c.,  on  the 
property,  a  number  of  small  debts  owing  by  the  estate,  and 
the  balance  remains  in  their  hands,  to  be  disposed  of  to  cer- 
tain legatees  named  in  the  will.  The  court  allowed  them 
$360.68  for  commissions.  The  executors  complain  that  this 
allowance  is  too  small,  and  the  object  of  this  appeal  is  to  have 
these  commissions  increased. 

The  respondents  deny  the  jurisdiction  of  this  court  as  to 
the  subject  matter  of  the  commissions.  They  insist  that,  by 
the  statute,  the  subject  of  commissions  is  submitted  entirely 
to  the  discretion  of  the  Orphans  Court,  and  that  this  court 
has  no  control  over  that  discretion.  It  is  admitted,  that  if 
the  Orphans  Court,  in  allowing  or  refusing  proper  comniis- 


234  PREROGATIVE  COURT. 

Anderson  ».  Berry. 

sions,  err  in  the  application  of  any  principle  of  law,  the  Pre- 
rogative Court  may  rectify  such  error;  but  where  the  mere 
question  is  as  to  the  quantum  of  allowance,  it  is  insisted 
this  court  cannot  review  the  determination  of  the  Orphans 
Court. 

By  section  4,  under  article  6  of  the  constitution,  it  is  de- 
clared, "all  persons  aggrieved,  by  any  order,  sentence,  or 
decree  of  the  Orphans  Court,  may  appeal  from  the  same,  or 
from  any  part  thereof,  to  the  Prerogative  Court.  The  object 
of  this  provision  was  to  give  to  the  Prerogative  Court  a  re- 
view of  all  orders,  sentences,  and  decrees  of  the  Orphans 
Court,  as  well  as  to  matters  of  fact  as  of  law.  It  is  an  appeal 
that  is  given,  that  is  a  review  or  rehearing  upon  all  determi- 
nations or  adjudications  made  by  the  Orphans  Court. 

In  RunJde  v.  Gale,  3  Hakt.  Ch.  R.  106,  and  in  Stevenson's 
Administrators  v.  Hart's  Executors,  Ib.  473,  the  point  was 
raised,  in  both  cases,  whether  this  court  would  entertain  an 
appeal  on  the  simple  question  of  the  amount  of  commissions. 
The  Ordinary,  however,  merely  referred  to  the  question  as 
one  raised  on  the  argument,  but  said  it  was  not  necessary  for 
the  decision  of  the  case  to  examine  it. 

I  cannot  doubt  the  jurisdiction  of  the  court.  It  is  conferred 
by  the  constitution,  and  the  legislature  have  not  the  power, 
if  they  were  so  disposed,  to  take  it  away  or  abridge  it.  The 
only  legislation  upon  this  subject  is  to  be  found  in  the  "Stat- 
utes of  New  Jersey,"  page  214,  section  26.  This  statute  was 
passed  April  16th,  1846,  when, the  general  revision  of  the 
laws  took  place.  It  is  an  exact  copy  of  the  law  of  1820.  This 
shows  it  was  not  passed  with  any  reference  to  the  appeal  to 
the  Prerogative  Court  given  by  the  constitution  of  1844. 
There  is  nothing  in  the  statute  which  looks  like  making  the 
matter  of  commissions  one  exclusively  for  the  discretion  of 
the  Orphans  Court.  The  statute  does  not  confer  in  terms 
the  power  upon  the  Orphans  Court  to  allow  commissions ; 
but  taking  it  for  granted  that  the  court,  from  the  very  cha- 
racter of  its  jurisdiction  and  incidental  powers,  is  necessarily 
clothed  with  authority  to  allow  commissions,  it  fixes  or  es- 


MAY  TERM,  1855.  235 

Anderson  v.  Berry. 

tablishes  the  principle  upon  which  such  allowance  shall  be 
made.  It  declares,  that  "the  allowance  of  commissions  to 
executors,  administrators,  guardians,  or  trustees  shall  be  made 
with  reference  to  their  actual  pains,  trouble,  and  risk  in  set- 
tling such  estate,  rather  than  in  respect  to  the  quantum  of 
estate." 

I  think  there  can  be  no  doubt  but  that  this  court  may  enter- 
tain an  appeal  on  the  simple  question  of  the  amount  of  com- 
missions. It  is  a  right  granted  by  the  constitution,  which  this 
court  cannot  deny.  Upon  such  an  appeal,  the  appellant  has  a 
right  to  the  judgment  of  the  Ordinary  upon  the  subject  matter 
appealed  from. 

But  although  the  jurisdiction  of  this  court  cannot  be  denied, 
yet  the  principles  upon  which  it  will  exercise  that  jurisdiction 
presents  a  different  question.  The  amount  of  commissions  is 
a  matter  submitted  entirely  to  the  discretion  of  the  court,  to 
be  regulated  and  governed  upon  the  principles  established  by 
the  statute.  Where  the  commissions  have  been  fixed  by  the 
Orphans  Court  this  court  ought  not  to  disturb  their  determi- 
nation, unless  they  have  committed  some  manifest  error  of 
judgment.  Where  the  same  facts  are  before  this  court  as 
were  before  the  court  below,  with  the  same  opportunity  of 
judging  of  the  "actual  pains,  trouble,  and  risk  in  settling  the 
estate,"  and  in  the  judgment  of  the  Ordinary  the  amount  of 
commissions  allowed  is  grossly  inadequate,  it  is  the  duty  of  the 
Ordinary  to  substitute  his  own  judgment,  and  exercise  his  own 
discretion  upon  the  subject  matter.  But,  unless  there  is  pal- 
pable manifest  error,  the  Ordinary  ought  not  to  interfere.  The 
object  of  the  appeal  is  to  afford  an  aggrieved  party  the  oppor- 
tunity of  having  some  error,  by  which  he  is  the  sufferer,  re- 
viewed and  corrected  by  this  court.  The  error  should  be  made 
manifest. 

In  this  case  I  cannot  say  that  the  Orphans  Court  erred. 
The  amount  of  commissions  is  not  grossly  inadequate  to  the 
services  rendered.  They  are  certainly  moderate;  but  on 
carefully  examining  all  the  facts  before  me,  I  am  unwilling 
to  say  that  the  Orphans  Court  erred  in  judgment. 

The  order  of  the  Orphans  Court  is  affirmed. 


23G  PREROGATIVE  COURT. 


Stevenson  v.  Phillips. 


ADMINISTRATORS  OF  STEVENSON,  appellants,  and  SIMEON 

A.  PHILLIPS,  appellee. 

I 

The  Orphans  Court  cnnnot  open  the  final  account  of  executors  or  adminis- 
trators except  for  fraud  or  mistake. 

Where  an  account  is  opened  to  correct  an  alleged  mistake  in  any  particu- 
lar item  or  items,  the  whole  account  is  not  thereby  thrown  open  for 
review. 

S.  R.  Hamilton,  for  appellants. 

J.  P.  Stockton  and  W.  Hoisted,  for  respondents. 

THE  ORDINARY.  The  only  dispute  between  these  parties 
now  is  as  to  the  allowance  of  commissions.  The  estate  has 
been  settled.  The  respondent,  Simeon  \V.  Phillips,  is  enti- 
tled, in  right  of  his  wife,  to  the  residue  of  the  estate  remain- 
ing after  the  payment  of  commissions.  The  whole  of  the 
residue  of  the  estate  is  now  in  the  hands  of  the  respondent, 
except  the  sum  of  eighty-three  dollars,  which  is  in  the  hands 
of  the  appellants. 

To  determine  what  the  court  ought  to  do  in  regard  to  these 
commissions,  it  is  necessary  to  look  briefly  at  the  history  of 
the  case  in  this  and  in  the  Orphans  Court. 

In  June  term,  1850,  the  final  decree  of  the  Orphans  Court 
was  reversed  by  this  court.  The  decree  of  this  court  declares, 
that  the  account,  as  stated  and  passed  by  the  Orphans  Court, 
is  manifestly  erroneous  in  many  respects,  and  that  the  same 
be  set  aside.  It  orders  the  same  to  be  restated,  and  for  that 
purpose  refers  the  same  to  Caleb  S.  Green,  esq.,  one  of  the 
masters. 

This  order  does  not  correspond  with  the  opinion  of  the 
Ordinary,  to  be  found  in  4  Halst.  Ch.  Rep.  593,  but  is  in 
accordance  with  a  manuscript  opinion,  which  is  before  me, 
which  declares  that  the  accounts  must  be  restated  and  settled 
in  this  court. 

The  master  restated  the  accounts,  and  among  other  things 
reported,  that  in  the  allowance  of  commissions,  the  same  al- 


MAY  TERM,  1856.  237 

Stevenson  v.  Phillips. 

lowance  should  be  made,  and  in  the  same  proportion  as  was 
made  by  the  Orphans  Court,  at  the  term  of  August,  1843, 
to  wit,  to  the  appellants  the  sum  of  $461.47,  and  to  the  re- 
spondent the  sum  of  $577.50. 

The  master  has  reported  the  evidence  which  has  brought 
him  to  this  conclusion,  and  upon  a  review  of  it,  my  own 
judgment  corresponds  with  that  of  the  master. 

I  think,  too,  in  looking  at  the  proceedings  in  the  Orphans 
Court,  they  show  a  propriety  in  permitting  the  commissions 
to  stand  according  to  the  first  determination  of  that  court  in 
reference  to  them. 

In  the  term  of  May,  1843,  of  the  Orphans  Court  of  the 
county  of  Hunterdon,  the  final  account  was  passed,  and  an 
allowance  was  made  to  the  appellants  for  commissions  of 
$461.47,  and  to  the  respondents  of  $577.50. 

In  the  term  of  January,  1844,  an  application  was  made, 
by  some  party  interested,  to  set  aside  the  account  for  fraud 
and  mistake.  No  mistake  or  fraud  was  specifically  pointed 
out,  and  yet  the  court  opened  the  accounts;  and  the  only 
alteration  they  made  was  respecting  the  commissions.  An 
allowance  was  made  to  the  appellants  of  $230.73,  instead  of 
$461.47,  and  an  allowance  to  the  respondent  of  $808.23,  in- 
stead of  $577.50. 

Upon  certiorari  to  the  Supreme  Court,  the  decree  of  the 
Orphans  Court,  opening  the  accounts  and  changing  the  com- 
missions, was  reversed,  and  thus  the  account  was  restored  as 
it  was  in  1843. 

After  this  decision  of  the  Supreme  Court,  at  the  term  of 
November,  1847,  of  the  Orphans  Court,  an  application  was 
itade  to  that  court  to  open  the  account  as  stated  in  1843,  on 
the  ground  of  alleged  mistakes  in  the  following  particulars — 
in  allowing  to  the  executors  the  sum  of  $3000,  and  also  in  the 
distribution  of  commissions. 

The  court  opened  the  account,  and  altered  the  account  as 
to  the  allowance  of  the  $3000  in  a  mere  matter  of  form; 
and  then  the  court  altered  the  commissions  without  any 
proof  of  a  mistake  or  any  mistake  being  apparent  on  the 

VOL.  ii.  p 


238  PREROGATIVE  COURT. 

Stevenson  v.  Phillips. 

face  of  the  account.  They  struck  out  of  the  account  the 
commissions  of  $461.47  allowed  the  appellants,  and  in  place 
of  that  sum  allowed  $361.47,  which  sum  they  ordered  to  be 
divided  between  the  appellants  and  respondents,  thus  giving 
the  appellants  the  sum  of  $180.73f  only. 

We  have,  then,  the  Orphans  Court  passing  a  final  account, 
in  May  term,  1843,  allowing  the  appellants  commissions  of 
$461.47.  In  January,  1844,  without  any  apparent  reason, 
the  court  change  the  allowance  to  $230.73;  and  when  the 
commissions  are  restored  by  the  judgment  of  the  Supreme 
Court  to  the  original  sum  allowed,  then  the  Orphans  Court, 
upon  a  mere  allegation  of  mistake  as  to  these  accounts,  but 
without  such  mistake  being  proved,  or  being  in  any  wray 
made  apparent  or  probable,  the  court  cut  down  the  commis- 
sions of  the  appellants  to  $180.73. 

The  Orphans  Court  had  no  right  to  alter  the  amount  of 
commissions  after  the  final  account  had  been  passed,  unless 
some  fraud  or  mistake  was  shown  with  regard  to  them.  And 
if  there  was  a  mistake  as  to  the  $3000,  and  the  accounts 
were  opened  to  correct  that  mistake,  that  did  not  authorize 
the  court  to  alter  the  commissions,  except  so  far  as  their 
amount  depended  upon  the  allowance  or  disallowance  of  the 
$3000.  This  would  be  incidental  to  the  variation  made  in 
the  sum  upon  which  commissions  were  charged.  But  it  is 
not  pretended  that  any  such  principle  governed  the  court. 
If  the  $3000  was  properly  struck  from  the  allowance  ac- 
count, the  commissions  allowed  to  the  appellants  on  that 
amount  being  only  $75,  that  sum  was  the  proper  deduction 
to  be  made;  and  yet  they  reduce  the  commissions  of  the  ap- 
pellants upwards  of  $280,  and  deduct  nothing  from  the  com- 
missions allowed  to  the  respondent. 

The  fact  is  too  apparent  to  be  concealed,  that  the  alleged 
mistake  of  $3000  was  made  use  of  in  order  to  enable  the 
court  to  reach  the  matter  of  commissions.  The  court  is  pro- 
hibited, by  the  statute,  from  opening  the  account,  except  for 
fraud  or  mistake.  But  when  an  account  is  opened  to  correct 
an  alleged  mistake  in  any  particular  item  or  items,  the  whole 


FEBRUARY  TERM,  1857. 


239 


Morris  v.  Morris. 


account  is  not  thereby  thrown  open  for  review.  The  court 
is  confined  to  the  alleged  mistake,  and  to  such  matters  in  the 
account,  an  alteration  of  which  is  incidental  to  a  correction 
of  the  mistake. 

An  allowance  of  commissions  must  be  made  in  conformitj 
to  the  report  made  by  the  master. 


ANN  E.  MORRIS  and  others  vs.  ISAAC  P.  MORRIS. 

It  is  only  when  a  minor  has  no  other  means  for  his  education  and  mainte- 
nance that  the  Orphans  Court  is  empowered  by  the  statute  to  order  the 
sale  of  his  lands. 

Where  the  parent  is  of  sufficient  ability  to  maintain  and  educate  the  infant, 
as  a  general  rule,  the  lands  of  the  latter  should  not  be  sold  for  that  pur- 
pose. 

There  may  be  such  a  disparity  between  the  fortune  of  the  minor  and  the 
pecuniary  circumstances  of  the  father  as  would  make  it  proper  that  the 
fortune  of  the  child  should  contribute  to  his  own  support. 

The  principle  which  should  govern  the  court  in  making  the  order  should 
be  the  same  as  has  been  adopted  in  chancery  in  like  cases. 


If.  V.  Specr,  for  appellants. 
A.  V.  Schenck,  for  respondents. 

THE  ORDINARY.  Ann  E.  Morris,  Mary  J.  Morris,  and 
George  P.  Morris  are  minors  under  the  age  of  fourteen  years. 
They  are  seized  of  about  thirty  acres  of  land  in  the  county 
of  Middlesex,  valued  at  one  thousand  dollars.  Their  father, 
Isaac  P.  Morris,  was  appointed  their  guardian  by  the  Orphans 
Court  of  the  county  of  Middlesex.  He  presented  a  petition 
to  that  court,  representing  that  the  personal  estate  and  rents 
and  profits  of  the  said  real  estate  were  not  sufficient  for  the 
maintenance  and  education  of  the  infants,  and  praying  for 
an  order  of  the  court  authorizing  him  to  sell  the  whole  of 
the  said  tract  of  land  for  those  purposes.  In  the  investiga- 
tion before  the  court,  it  was  admitted,  and  the  admission  re-; 
ceived  as  a  part  of  the  evidence,  that  the  father  was  seized  of 


240  PREROGATIVE  COURT. 

Morris  v.  Morris. 

considerable  land  in  the  county,  and  was  abundantly  able  to 
maintain  and  educate  his  children.  The  court  made  an  order 
for  tlie  sale  of  the  lands,  in  which  order  they  recited  that 
they  had  examined  the  inventory  of  the  estate  of  the  said 
infants  theretofore  filed  by  the  said  guardian,  and  had  made 
a  full  investigation  of  the  situation  and  produce  thereof,  and 
of  the  state  and  circumstances  of  the  said  infants,  and  judged 
it  necessary  for  their  maintenance  and  support  to  make  the 
order.  The  appeal  is  from  this  order. 

By  the  6th  section  of  the  act  respecting  "guardians,"  (Nix. 
Dig.  317)  it  is  enacted,  "If  the  personal  estate  and  rents  and 
profits  of  the  real  estate  be  not  sufficient  for  the  maintenance 
and  education  of  the  ward,  the  Orphans  Court  of  the  proper 
county,  on  full  investigation  thereof,  may,  from  time  to  time, 
order  the  guardian  to  sell  so  much  of  the  timber  growing  or 
being  upon  the  lands  of  said  ward,  or  such  parts  of  the 
ward's  lands,  tenements,  hereditaments,  and  real  estate  as 
they  shall  direct  and  judge  adequate  for  his  or  her  main- 
tenance and  education."  By  the  10th  section  of  the  same 
act,  it  is  enacted,  "If  any  minor  or  minors  shall  become 
seized  or  possessed  of,  or  entitled  to  any  real  or  personal  es- 
tate in  the  lifetime  of  the  father  of  sucli  minor  or  minors,  it 
shall  and  may  be  lawful  for  the  Ordinary,  or  for  the  Orphans 
Court  of  the  county  where  such  minor  or  minors  reside,  or 
such  real  or  personal  estate  may  be;  to  appoint  the  father, 
or  other  suitable  person  or  persons,  guardian  or  guardians 
of  the  estate  of  such  minor  or  minors." 

The  provisions  contained  in  the  6th  section  of  the  act  are 
of  long  standing,  and  were  contained  in  the  originol  acts  of 
the  legislature  giving  jurisdiction  to  the  Orphans  Court  as  to 
the  appointment  of  guardians  and  the  sale  of  infants'  lands. 
The  provisions  of  the  10th  section  are  of  recent  origin,  and 
were  probably  incorporated  into  the  act  in  consequence  of  the 
decision  in  the  case  of  Garrabrant  v.  Siyler,  in  April  term, 
1829,  when  the  Ordinary  decided  that  the  Orphans  Court 
bad  no  power  to  appoint  a  guardian  for  a  minor  during  the 
lifetime  of  the  father;  the  Prerogative  Court  had  no  such 


FEBRUARY  TERM,  1857.  241 

Morris  v.  Morris. 

power,  nor  could  the  consent  of  the  father  confer  such  juris- 
diction. 

Previous  to  the  provisions  contained  in  the  10th  section, 
the  Orphans  Court  had  no  power  to  order  the  sale  of  land  of 
an  infant  who  had  a  father  living.  The  court  could  only 
order  such  sale  upon  the  application  of  a  guardian  appointed 
by  the  court.  The  court  having  no  power  to  appoint  a 
guardian  of  an  infant  who  had  a  father  living,  it  followed 
that  they  possessed  no  power  to  make  such  an  order.  It  was 
to  meet  this  exigency  that  power  was  conferred  upon  the 
court  to  appoint  the  father,  or  other  suitable  person,  guard- 
ian of  the  estate  of  such  minor.  Prior  to  this  power  being: 
conferred,  the  only  mode  by  which  the  estate  of  a  minor  so 
circumstanced  could  be  appropriated  to  his  maintenance  and 
education  was  by  an  application  to  the  Court  of  Chancery, 
which,  by  virtue  of  its  general  jurisdiction  over  minors  and 
their  estates,  frequently  exercised  this  power.  The  jurisdic- 
tion of  the  Court  of  Chancery  is  not  at  all  diminished  or 
limited  by  the  act  of  the  legislature  referred  to. 

The  power  conferred  upon  the  Orphans  Court  was  to  en- 
able that  court  to  order  the  sale  of  the  land  of  a  minor 
where  that  minor  had  no  other  means  for  his  education  and 
maintenance.  Although  the  language  of  the  act  is,  "  if  the 
personal  estate  and  rents  and  profits  of  the  real  estate  be  not 
sufficient,"  it  was  never  the  intention  of  the  act  that  where 
the  infant  was  abundantly  provided  from  other  resources  for 
his  maintenance  and  education  other  than  his  own  personal 
and  real  estate,  yet  because  his  own  real  and  personal  estate 
were  not  sufficient  for  the  purpose,  the  court  might  order  a 
sale  of  his  real  estate.  It  would  be  a  perversion  of  the  wise 
provisions  of  the  act  to  exercise  the  power  in  such  a  case. 
Suppose  a  minor  seized  of  real  estate,  the  rents  and  profits 
not  being  sufficient  for  the  objects  contemplated  by  the  act, 
and  possessed  of  no  personal  estate,  but  abundantly  supplied 
by  wealthy  relatives  with  ample  means  for  support  and  edu- 
cation, there  could  be  no  propriety  in  ordering  his  lands  con- 
verted into  money  for  purposes  for  which  money  was  not 


242  PREROGATIVE  COURT. 

Morris  v.  Morris. 

wanted.  It  would  be  a  wanton  sacrifice  of  the  minor's  prop- 
erty, under  such  circumstances,  to  order  a  sale  of  his  lands. 
It  would  be  using  the  salutary  provisions  of  the  act  to  the 
great  injury,  instead  of  the  benefit  of  the  minor. 

In  this  case  it  appeared  to  the  court  that  the  parent  who, 
as  the  guardian,  applied  for  the  order  was  abundantly  able 
to  maintain  and  educate  the  minors.  There  was  no  dispute 
upon  this  point.  Why,  then,  should  the  court  make  an  order 
to  sell  the  real  estate  of  the  minors  ?  The  parent  was  under 
a  moral  obligatiou  to  maintain  and  educate  his  children. 
The  minors  had  then  means  other  than  this  real  estate  to 
supply  their  wants,  and  there  was  therefore  no  propriety  in 
making  the  order  in  this  case. 

I  do  not  mean  to  lay  down  the  principle,  that  the  Orphans 
Court  would  not  be  justified,  in  any  case  where  the  father 
has  the  means  of  educating  and  maintaining  his  minor  chil- 
dren, to  grant  an  order  upon  the  application  of  the  father,  as 
guardian,  to  sell  the  lands  of  the  minor.  All  I  mean  to  say 
is,  that  there  should  appear  to  the  court  some  good  reason 
why  the  father  should  not  appropriate  his  own  fortune  and 
means  to  maintain  and  educate  his  children.  There  may  be 
such  a  disparity  between  the  fortune  of  the  minor  and  the 
pecuniary  circumstances  of  the  father  as  would  make  it  pro- 
per that  the  fortune\of  the  child  should  contribute  to  his  own 
support.  The  principle  which  should  govern  the  court  in 
making  the  order  should  be  the  same  as  has  been  adopted 
in  chancery  upon  like  applications.  Jackson  v.  Jackson,  1 
Atk.  513,  514;  Fawkner  v.  Fawkner,  1  Atk.  405;  Collier  v. 
Collier,  3  Ves.  33 ;  Butler  v.  Butler,  3  Atk.  408  ;  Andrews  v. 
Partington,  3  Brown's  Ch.  Cos.  60;  Roach  v.  Gawan,  1 
Ves.  158;  33  Cur.;  11  Vent.  353,  Anon.;  BiUingsby  v. 
Oretcher,  1  Brown's  Ch.  Rep.  269  ;  Lady  Shaftsbury's  case, 
Free,  in  Ch.  558  ;  Chaplin  v.  Chaplin,  1  P.  W.  365 ;  Shaw 
v.  SJmw,  9  Ves.  288  ;  Hill  v.  Chapman,  2  Brown's  Ch.  Cos. 
231  ;  Wilkes  and  wife  v.  Rogers  and  others,  6  Johns.  Rep. 
571,  and  cases  cited. 


MAY  TERM,  1857.  243 


Turner  v.  Cheesman. 


EDWARD  TURNER  and  BENJAMIN  T.  CHEESMAN,  executors 
of  the  will  of  Peter  Cheesraan,  deceased,  appellants,  and 
WILLIAM  J.  CHEESMAN,  respondent. 

The  presumption  of  law  is  in  favor  of  testamentary  capacity,  and  he  who 
insists  on  the  contrary  has  the  burthen  of  proof,  except  where  insanity 
in  the  testator  has  been  shown  to  exist  at  a  time  previous  to  the  execu- 
tion of  the  will;  in  that  case  the  onus  is  shifted,  and  the  party  offering 
the  will  is  bound  to  show  that  it  was  executed  at  a  lucid  interval. 

The  time  of  the  execution  of  the  will  is  the  material  period  to  which  the 
court  must  look  to  ascertain  the  state  of  mind  of  the  testator ;  and  al- 
though it  is  competent  evidence  to  show  the  testator's  mind  at  any  time 
previous  or  subsequent  to  the  execution  of  the  will,  yet  such  proof  is 
always  liable  to  be  overcome,  if  it  be  satisfactorily  shown  that  the  tes- 
tator, at  the  time  he  executed  the  writing,  had  the  possession  of  his 
faculties. 

The  testamentary  witnesses  and  their  opinions,  and  the  facts  they  state  as 
occurring  at  the  time,  are  to  be  particularly  regarded  by  the  court. 

The  opinion  of  witnesses,  other  than  the  testamentary  witnesses,  as  to  the 
capacity  of  the  testator,  are  to  be  received  as  the  slightest  kind  of  evi- 
dence, except  so  far  as  they  are  based  on  facts  and  occurrences  which  are 
detailed  before  the  court. 

Old  age,  failure  of  memory,  and  even  drunkenness,  do  not  of  themselves 
necessarily  take  away  a  testator's  capacity  ;  he  may  be  ever  so  aged,  very 
infirm  in  body,  and  in  habits  of  intemperance,  and  yet,  in  the  eye  of  the 
law,  possess  that  sound  mind  necessary  to  a  disposition  of  his  estate. 

The  failure  of  memory  is  not  sufficient  to  create  testamentary  incapacity, 
unless  it  be  total,  or  extend  to  his  immediate  family  and  property.  The 
amount  of  mental  capacity  must  be  equal  to  the  subject  matter  with 
which  it  has  to  deal :  a  man  may  be  competent  to  make  a  codicil, 
changing  in  two  or  three  particulars  the  prior  dispositions  in  his  will, 
who  would  be  incompetent  to  the  performance  of  acts  requiring  the 
exercise  of  far  greater  intellect  and  judgment. 

If  it  be  clear  that  the  writing  propounded  for  probate  is  the  will  of  a  sound 
and  disposing  mind,  the  court  cannot  look  beyond  it  for  the  testator's 
motives  for  the  disposition  of  his  property  made  by  him.  The  right  of 
absolute  dominion,  which  every  man  has  over  his  own  property,  is  sacred 
and  inviolable. — Per  POTTS,  judge  of  Orphans  Court. 

The  mere  fact  of  a  man's  having  affixed  his  signature  to  a  will  as  a  sub- 
scribing witness  does  not  entitle  his  opinion,  as  to  the  competency  of  the 
testator,  to  any  more  weight  than  that  of  any  one  else  who  may  be  called 
upon  to  testify. 


244  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

If  the  subscribing  witness  is  a  stranger,  and  has  no  opportunity  to  ascer- 
tain and  judge  of  the  testator's  capacity,  his  opinion  is  not  entitled  to  as 
much  weight  as  that  of  a  friend  who  saw  the  testator  about  the  same 
time,  and  who  was  afforded  an  opportunity  of  conversing  with  him,  and 
testing  the  sanity  of  his  mind. 

The  opinion  of  any  one — whether  a  subscribing  witness  or  not — is  of  but 
little  value,  unless  he  can  give  the  reasons  for  the  opinion  which  he  ex- 
presses. 

The  influence  exercised  over  a  testator,  which  the  law  regards  as  undue  or 
illegal,  must  be  such  as  to  destroy  his  free  ngency ;  but  no  matter  how 
little  the  influence,  if  the  free  agency  is  destroyed,  it  vitiates  the  act 
which  is  the  result  of  it. 

That  degree  of  influence  which  deprives  a  testator  of  his  free  agency, 
which  is  such  as  lie  is  too  weak  to  resist,  and  which  renders  the  instru- 
ment not  his  free  and  unconstrained  act,  will  be  sufficient  to  invalidate 
it,  not  in  relation  to  the  person  alone  by  whom  it  is  procured,  but  as  to 
all  others  who  are  intended  to  be  benefited  by  the  undue  infliu.flce. 


This  case  came  before  the  court  by  appeal  from  the  decree 
of  the  Orphans  Court  of  the  county  of  Camden.  Two  papers 
were  presented  to  the  surrogate  of  that  county  for  probate, 
the  one  purporting  to  be  the  last  will  and  testament  of  Peter 
Cheesman,  deceased,  and  the  other  a  codicil  thereto.  Caveats 
against  the  probate  of  these  papers  were  filed  by  William  J. 
Cheesman.  Witnesses  were  examined,  and  the  Orphans  Court 
being  divided  as  to  the  admission  of  the  codicil,  an  order  was 
made  rejecting  it.  This  appeal  was  taken  from  that  order. 
The  testimony  is  sufficiently  noted  in  the  opinions  delivered 
to  elucidate  the  points  decided. 

Carpenter,  for  appellants. 

Voorhees  and  Browning,  for  respondents. 

The  following  opinion  was  delivered  in  the  Orphans  Court  by 

POTTS,  P.  J.  On  the  ninth  of  February,  1 853,  Peter  Chees- 
man made  and  executed  a  will,  devising  the  farm  and  planta- 
tion on  which  he  lived,  among  other  things,  to  his  wife  for 
life,  and  the  residue  of  his  estate,  with  the  farm,  after  his  wife's 


MAY  TERM,  1857.  245 

Turner  v.  Cheesman. 

decease,  equally  among  his  children  living  and  the  representa- 
tives of  those  deceased. 

About  the  25th  of  January,  1856,  he  was  attacked  with  a 
severe  sickness,  which  terminated  his  life  on  the  24th  of 
March  following,  at  the  advanced  age  of  nearly  eighty-six 
years. 

During  his  sickness,  on  the  5th  of  March,  he  made  and 
executed  a  codicil  to  his  will,  by  which  he  gave  the  plantation, 
in  the  will  devised  to  his  wife  for  life,  to  his  youngest  son  John 
after  her  decease,  instead  of  the  share  given  him  by  the  will, 
and  made  two  or  three  other  alterations  in  the  disposition  of 
his  estate. 

Ten  of  his  children  survived  him  or  left  living  representa- 
tives— four  of  them  by  his  first  wife,  and  six  by  a  second. 

No  question  is  made  as  to  the  will  of  1853,  nor  as  to  the 
fact  of  the  execution  of  the  codicil  of  March,  1856,  but  the 
caveator  insists  the  codicil  ought  not  to  be  admitted  to  pro- 
bate. They  object  that  the  testator  was  not  of  sound  and 
disposing  mind  and  memory  when  he  executed  it;  that  it 
makes  an  unreasonable  disposition  of  his  property  ;  that  it 
makes  a  disposition  contrary  to  all  his  previous  declarations  as 
to  his  intentions  on  the  subject,  and  that  it  was  obtained  by 
undue  influence. 

The  general  rules  and  principles  adopted  by  the  Ordinary 
in  the  case  of  Whitenack  v.  Stryker  and  Vorhees,  1  Green's 
Ch.  .R.  11,  are  of  controlling  authority  in  this  court  as  far 
as  they  are  applicable  to  this  case.  They  were  adopted  after 
solemn  argument,  and  have  not  since  been  questioned,  as  far 
as  I  am  advised,  in  this  state.  In  that  case  the  Ordinary 
said — 

1.  The  first  principle  is,  that  the  presumption  of  the  law 
is  in  favor  of  capacity,  and  he  who  insists  on  the  contrary  has 
the  burthen  of  proof,  except  where  insanity  in  the  testator 
lias  been  shown  to  exist  at  a  time  previous  to  the  execution 
of  the  will ;  in  that  case  the  onus  is  shifted,  and  the  party  of- 
fering the  will  is  bound  to  show  that  it  was  executed  at  a 
lucid  interval. 


246  PREROGATIVE  COURT. 

Turner  ».  Cheesman. 

2.  That  the  time  of  the  execution  of  the  will  is  the  mate- 
rial period  to  which  the   court   must   look  to  ascertain  the 
state  of  mind  of  the  testator;  that  although  it  is  competent 
evidence  to  show  the  testator's  mind  at  any  time  previous  or 
subsequent  to  the  execution  of  the  will,  yet  such  proof  is 
always  liable  to  be   overcome,  if  it  be  satisfactorily  shown 
that  the  testator,  at  the  time  he  executed  the  writing,  had 
the  possession  of  his  faculties. 

3.  That  of  all   the  witnesses,  the  testamentary  witnesses, 
and  their  opinions,  and  the  facts  they  state  as  occurring  at 
the  time,  are  to  be  particularly  regarded  by  the  court.     They 
are  placed  around  the  testator  for  the  very  purpose  of  at- 
testing, after  his  death,  to  the  circumstances  under  which  so 
solemn  an  instrument  is  executed. 

4.  That  the  opinions  of  witnesses,  other   than  the  testa- 
mentary witnesses,  as  to  the  capacity  of  the  testator,  are  to 
be  received  as  the  slightest  kind  of  evidence,  except  so  far  as 
these  are  based  on  facts  and  occurrences  which  are  detailed 
before  the  court.     Witnesses  are  to  state  the  facts,  and  it  is 
the  business  of  the  court,  from  these  facts,  to  pronounce  ihe 
opinion,  upon  settled  rules  and  guides,  whether  the  testator 
is  competent  or  not. 

5.  That  old  age,  failure  of  memory,  and  even  drunkenness, 
do  not,  of  themselves,  necessarily  take  away  a  testator's  ca- 
pacity.    He  may  be  ever  so  aged,  very  infirm  in  body  and 
in  habits  of  intemperance,  and  yet  in  the  eye  of  the  law  possess 
that  sound  mind  necessary  to  a  disposition  of  his  estate. 

The  attention  of  the  court,  then,  is  very  properly  directed, 
in  the  first  place,  to  the  time  of  the  execution  of  the  codicil 
and  the  testimony  of  the  attesting  witnesses,  to  the  circum- 
stances attending  the  execution,  and  the  condition  of  the 
testator  when  he  performed  the  act.  It  appeal's  that  the  codicil 
in  question  was  prepared,  under  instructions  received  the  day 
previous  from  the  testator,  by  Edward  Turner,  who  had  also 
prepared  the  will  of  1853,  and  who  was,  by  that  will,  ap- 
pointed one  of  the  executors,  and  that  said  codicil  was  exe- 
cuted in  the  presence  of  Samuel  D.  Sharp  and  Jonas  Keen ; 


MAY  TERM,  1*857.  247 


Turner  v.  Cheesman. 


that  Sharp  was  the  subscribing  witness  to  the  will,  as  well  as 
to  the  codicil,  and  that  the  other  subscribing  witness  to  the 
will,  William  Taylor,  had  removed  to  the  western  country 
previous  to  the  execution  of  the  codicil. 

Mr.  Sharp  testifies  to  the  execution  of  the  codicil  in  due 
form,  and  that  he  believes  the  testator  at  the  time  was  of 
sound  mind  and  competent  to  dispose  of  his  property;  that 
it  was  witnessed  by  him  at  the  request  of  the  testator,  and 
at  the  testator's  own  house ;  and  in  his  cross-examination  he 
says,  "  Peter  Cheesman,  at  the  time  he  executed  his  codicil, 
was  in  a  chair  beside  his  bed  ;  it  was  in  the  afternoon,  after 
dinner,  about  the  middle  of  the  afternoon,  I  think;  he  said 
he  did  not  feel  well ;  he  got  up  out  of  his  bed,  after  I  got 
there,  to  execute  the  codicil;  I  think  lie  either  got  in  bed,  or 
got  out  of  the  chair,  and  sat  on  the  side  of  the  bed  after  he 
had  executed  it ;  I  do  not  remember  now  whether  anybody 
helped  him  up,  or  back  into  bed  or  not ;  he  wrote  his  name  to 
the  paper  with  his  own  hand  and  without  assistance — I  saw 
no  one  assist  him  to  do  it ;  John  S.  Cheesman  came  after  me  to 
witness  the  execution  of  the  codicil.  He  says  he  saw  John 
when  he  got  there — he  was  cutting  up  some  wood,  and  was 
carrying  it  into  the  room  where  the  old  gentleman  was;  he 
asked  his  father  if  he  could  do  anything  for  him,  and  the 
old  gentleman  told  him  to  get  in  plenty  of  wood,  and  keep 
the  house  warm  ;  he  says  the  codicil  had  been  written  before 
he  got  there ;  it  was  read  over  to  tiie  old  gentleman  in  my 
presence — I  heard  it  read  to  him;  Mr.  Turner,  Mr.  Keen, 
and  I  sat  there  talking,  perhaps  for  an  hour,  before  Mr. 
Turner  asked  the  old  gentleman  if  he  was  ready  to  execute 
the  codicil;  the  old  gentleman  was  lying  on  the  bed  when 
Mr.  Turner  asked  him  this;  nothing  had  been  said  by  the 
old  man  to  me  after  I  got  there,  except  that  he  asked  me 
how  I  was,  when  I  went  in;  I  replied  that  I  was  well,  and 
asked  him  how  he  was,  and  he  replied  that  he  was  not  very 
well ;  he  talked  to  aunt  Sallie  (his  wife),  to  John  and  the 
little  girl ;  I  do  not  know  that  he  talked  much  to  me  and 


248  PRERdkATIVE  COURT. 


Turner  v.  Cheesman. 


Tumor  and  Keen  ;  lie  laid  upon  the  bed  the  whole  time  I 
was  there,  until  the  time  that  Mr.  Turner  asked  him  if  he 
was  ready  to  sign  the  codicil;  he  had  his  pantaloons  on,  but 
I  think  not  his  coat;  I  do  not  remember  that  any  one  helped 
him  get  up  to  his  chair;  he  got  up  right  away  after  Mr.  Tur- 
ner called  him ;  there  was  a  little  stand  near  the  bed ;  Mr. 
Turner  had  a  pen  and  ink  of  his  own  with  him  ;  after  he  got 
up  he  requested  Mr.  Turner  to  read  the  paper,  and  aunt 
Sallie  asked  him  if  she  must  go  out  of  the  room  ;  uncle  Peter 
said  no,  you  can  stay  in ;  then  Mr.  Turner  read  the  codicil  to 
him;  John  S.  Cheesman  was  not  in  the  room  at  the  time; 
after  it  was  read,  Peter  Cheesman  signed  it;  so  I  do  not  re- 
member that  the  old  gentleman  said  anything  after  Mr.  Tur- 
ner was  done  reading  it;  Mr.  Turner  put  the  pen  into  the 
ink,  and  handed  it  to  Peter  Cheesman  to  sign  the  paper  with, 
and  he  did  the  same  thing  for  me  and  Mr.  Keen."  This  wit- 
ness being  again  examined  in  chief,  says — when  Mr.  Turner 
read  on  down  till  he  came  to  his  son  Thomas  J.  Cheesman 
to  have  a  certain  piece  of  land  of  forty  acres,  uncle  Peter 
said,  "stop  and  alter  that,  and  put  it  twenty  acres,  and  if 
he  wants  more  let  him  buy  it."  When  Turner  read  down  to 
John  S.  Cheesman,  Peter  said  that  John  had  taken  the  mare 
to  the  horse,  and  should  have  the  colt;  he  also  said  that  John 
should  have  a  certain  cow.  Turner  made  the  alterations  as 
directed. 

Mr.  Keen,  the  other  subscribing  witness,  gives  much  the 
same  account  of  the  transactions,  with  a  little  more  particu- 
larity. He  says,  when  the  testator  executed  the  codicil,  Mr. 
Turner  requested  him  to  place  his  finger  on  the  seal,  and 
then  asked  him  if  that  was  the  codicil  to  his  will;  he  said  it 
was;  it  was  read  over  to  him.  before  he  signed;  that  while 
being  read,  and  Turner  had  read  down  to  John  S.  Cheesman, 
he  said  something  about  a  cow — a  black  horse  and  cow  were 
to  be  his — and  told  Turner  to  put  the  colt  in  also.  When  he 
read  to  Thomas  J.  Cheesman  forty  acres,  testator  said,  "  stop, 
I  told  you  twenty,  put  that  twenty — if  he  wants  more  let 
him  buy  it."  Turner  interlined  it,  brought  it  back,  read 


MAY  TERM,  1857.  249 

Turner  v.  Cheesman, 

what  he  had  written,  and  said  it  was  right.  He  says,  "I 
suppose  I  was  in  the  room  with  Peter  Cheesman  an  hour  be- 
fore the  codicil  was  executed ;  he  had  laid  down  before  we 
got  there,  and  they  wished  him  to  rest ;  I  was  in  little  of  a 
hurry,  as  it  was  getting  late,  and  spoke  to  Mr.  Turner  to 
have  the  business  closed;  then  he  spoke  to  Mrs.  Sarah  Chees- 
man about  it,  and  she  inquired  of  the  testator  whether  he 
had  had  his  nap  out ;  he  said  he  hadn't  been  asleep — she  said 
she  guessed  he  had ;  he  said  no,  he  had  not  been  asleep,  for 
he  had  heard  us  talking;  then  Turner  asked  him  if  he  was 
ready  to  have  the  codicil  executed,  and  he  said  he  was ;  after 
the  codicil  was  executed  I  sat  down  by  him — he  had  then 
laid  down  in  the  bed  again ;  he  said  to  me,  'Jonas,  I  have 
been  worried  about  this  for  fear  I  should  not  get  it  fixed/ 
He  then  stated,  that  having  got  the  codicil  fixed,  he  was 
satisfied  now ;  he  reached  his  hand  over  to  me,  and  said,  I 
am  now  ready  to  die ;  he  said  he  was  ready  to  die  before,  all 
but  that,  and  as  that  was  now  fixed  he  was  ready  to  go  just 
when  it  pleased  the  Lord  to  take  him."  As  to  the  testator's 
competency,  the  witness  says,  "  I  have  known  Peter  Chees- 
man for  many  years,  and  just  whatever  he  made  his  mind  up 
to  he  was  very  decisive  and  firm ;  and  from  the  conversation 
I  had  with  him  that  day,  and  a  few  days  before,  I  thought  he 
had  the  best  mind  of  any  man  of  his  age  I  had  ever  known ; 
at  the  time  of  the  execution  of  the  codicil  I  thought  him  a 
man  of  sound  mind,  and  competent  to  dispose  of  his  pro- 
perty ;  I  thought  his  mind  as  good  as  ever  it  was — I  saw  no 
weakness  in  his  mind,  it  was  only  in  his  system." 

This  evidence,  standing  alone,  would  seem  to  establish 
quite  satisfactorily  the  testator's  competency  at  the  time  of 
the  execution.  It  would  appear,  from  what  he  said  to  Mr. 
Keen,  that  he  had  had  the  matter  of  making  this  codicil  on 
his  mind,  and  had  been  anxious  and  troubled  lest  his  failing 
health  should  have  prevented  him  from  accomplishing  the 
purpose.  He  has  it  carefully  read  over  to  him;  he  pays 
strict  attention  to  its  contents ;  he  instantly  detects  an  error 
in  the  draftsman  in  giving  forty  acres  of  land,  instead  of 


250  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

twenty,  as  he  says  he  told  him,  to  his  son  Thomas ;  he  orders 
another  alteration  to  be  made  in  favor  of  John,  and  gives  the 
reasons  for  it;  he  executes  it  with  due  formality,  and  re- 
quests the  witnesses  to  attest  it;  he  says  but  little,  but  what 
he  does  say  is  sensible  and  appropriate  to  the  occasion  and  to 
his  circumstances.  There  is  nothing  in  what  he  says  or  avers 
at  the  time  which  indicates  the  slightest  failure  of  mind, 
memory,  or  understanding,  and  the  witnesses  who  saw  and 
heard  him,  and  whose  duty  it  was  to  be  satisfied  of  his  com- 
petency before  subscribing  the  instrument,  express  the  most 
clear  and  unequivocal  opinion  that  he  was  possessed  of  the 
requisite  qualifications. 

Then  what  is  the  case  made  by  the  caveators  ? 

1.  They  undertake  to  show  the  testator's  general  incompe- 
tency,  owing  to  age  and  sickness,  to  transact  business,  both 
before  and  after  the  act  of  the  execution,  and  from  these 
premises  argue  his  incompetency  at  the  time. 

Doct.  Sickler,  the  physician  who  attended  him  from  the 
25th  of  January  to  the  8th  of  February,  testifies  that  he 
looks  upon  him  as  a  very  old,  worn  out,  broken  up  man, 
whose  mind  as  well  as  his  body,  had  fallen  off  very  much 
from  what  it  once  had  been ;  that  his  mind  was  not  entirely 
gone,  but  when  he  saw  him  it  was  with  some  difficulty  he 
could  bring  to  his  recollection  what  had  transpired  a  few 
days  before.  He  did  not  always  recognize  the  witness  when 
he  went  there,  and  on  the  29th  January  does  not  think  he 
recognized  him  or  anybody  else,  but  next  day  he  did  recog- 
nize him.  He  says,  when  I  saw  him,  I  do  not  think  he  was 
competent  to  transact  business ;  my  reason  for  this  opinion  is, 
that  I  could  not  get  him  to  carry  out  my  directions,  either 
written  or  otherwise,  in  prescribing  for  him;  his  disease  was 
hydrothorax,  or  an  accumulation  of  water  in  the  cavity  of 
the  chest. 

Doct.  Sickler,  it  will  be  remembered,  ceased  attending  the 
testator  on  the  8th  February,  and  the  codicil  was  executed 
on  the  5th  of  March,  twenty-six  days  later.  On  the  7th  of 
March,  two  days  after  the  codicil  was  executed,  Doct.  Clark 


MAY  TERM,  1557.  251 


Turner  v.  Cheesman. 


was  called  in  to  attend  him  as  physician,  and  continued  to 
visit  him  until  his  decease.  When  he  first  visited  him  he 
says,  "  I  found  him  lying  in  his  bed  suffering  a  good  deal  of 
pain ;  his  pulse  was  somewhat  irregular,  and  his  suffering 
was  principally  from  some  irregularity  in  regard  to  his 
urinal  functions;  he  labored  in  his  breathing  from  a  sense  of 
suffocation ;  from  his  symptoms,  I  supposed  there  was  an 
effusion  upon  the  chest  around  the  heart,  or  some  organic 
affection  of  the  heart ;  his  mind,  on  my  first  visit,  appeared 
to  be  perfectly  clear — I  judged  so  from  his  recognizing  me 
and  conversing  with  me  about  a  matter  that  had  occurred  a 
good  while  before;  it  had  been  a  long  time  since  I  had  seen 
him  before,  and  some  fifteen  or  twenty  years  since  I  had  pre- 
viously attended  him  ;  he  spoke  of  the  circumstances  attend- 
ing rny  last  visit  to  him  as  his  physician,  and  of  the  cause  of 
his  illness  at  that  time;  he  said  he  hoped  I  should  be  able 
to  relieve  him,  but  that  he  had  his  doubts  about  it,  as  he 
was  an  old  man,  and  he  then  stated  to  me  his  age ;  his  dis- 
ease had  no  direct  connection  with  his  mind,  and  could  not 
affect  his  mind  directly  as  fever  would ;  I  saw  nothing  about 
his  case  that  would  lead  me  to  doubt  his  competency  to 
make  a  will."  He  visited  the  testator  again  on  the  thir- 
teenth and  seventeenth  of  March — conversed  with  him — 
should  say  his  intellect  was  clear.  The  witness  says  the 
severe  oppression  of  which  I  speak  is  not  constant  in  such 
cases ;  it  was  not  so  in  his  case ;  it  arises  from  the  imperfect 
oxygenation  of  the  blood,  while  its  circulation  is  impeded 
through  the  lungs  ;  I  am  willing  to.  say  that  his  disease  was 
one  not  calculated  to  affect  the  mind,  or  not  to  have  much 
effect  upon  the  mind. 

Taking  the  evidence  of  Doctor's  Sickler  and  Clark  together, 
it  does  not  impair  the  strength  of  the  case  made  by  the  at- 
testing witnesses.  It  is. shown  that  the  disease  was  not  cal- 
culated directly  to  affect  the  mind ;  that  the  testator  was 
better  two  days  after  the  codicil  was  executed  than  he  had 
been  several  weeks  before,  when  Doct.  Sickler  attended  him, 
and  that  he  did  not,  at  that  period  nearest  the  time  of  the 


252  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

execution,  exhibit  anything  like  a  want  of  intellect  or  testa- 
mentary capacity.  The  disease  was  of  a  character,  too,  which 
explains  a  good  deal  of  the  testimony  in  the  case,  such  as  his 
indisposition  at  times  to  converse  or  to  use  any  exertion. 
The  painful  sense  of  suffocation  incident  to  the  imperfect  oxy- 
genation  of  the  blood,  from  the  failure  of  the  lungs  to  per- 
form one  of  their  most  important  functions,  would  naturally 
dispose  the  patient  to  avoid  effort  and  excitement,  and  desire 
as  perfect  and  undisturbed  quiet  as  possible.  Doct.  Sickler 
says  the  disease  of  the  testator  was  chronic.  Treating  of  hy- 
drothorax,  Doct.  Wood  says,  "sometimes  it  comes  on  sud- 
denly, and  proves  fatal  in  a  short  time ;  but  much  oftcner  it 
is  chronic,  lasting  for  a  long  time,  sometimes  better  sometimes 
worse,  now  yielding  to  treatment  and  again  returning,  until 
at  length  the  patient  succumbs,  either  under  the  disease  in 
which  the  dropsy  originated  or  from  the  effects  of  the  dropsy 
itself."  2  Wood's  Pr.  of  Med.  356. 

Thus  far  we  have  examined  the  testimony  of  those  witnesses 
whose  opinions  are  entitled  to  any  considerable  weight  in 
determining  the  question  of  the  testator's  capacity.  A  num- 
ber of  other  witnesses  have  been  examined  ;  as  to  these,  their 
opinions,  in  the  language  of  Mr.  Justice  Washington,  Har- 
rison v.  Rowan,  3  Wash.  C.  C.  R.  587,  are  entitled  to  little 
or  no  regard,  unless  they  are  supported  by  good  reasons, 
founded  on  facts  which  warrant  them.  If  the  reasons  are 
frivolous  or  inconclusive  the  opinion  of  the  witnesses  are 
worth  nothing,  and  neither  facts  nor  opinions  are  of  any 
weight  in  investigations  like  this,  except  so  far  as  they  tend 
to  throw  light  on  the  condition  of  the  testator's  mind  at  the 
time  of  the  execution  of  the  codicil.  I  shall  therefore  only 
have  occasion  to  notice  the  testimony  of  such  witnesses  as 
state  facts  in  support  of  the  opinion  they  express. 

Thomas  Pilling  says  he  did  business  with  testator  in  Oc- 
tober or  November,  1855,  and  he  appeared  to  be  competent 
then  to  attend  to  business  as  he  had  ever  been — witness  knew 
him  first  in  1849. 

Jacob  Johnson  knew  testator  for  three  years,  was  with  him 


MAY  TERM,  1857.  253 


Turner  v.  Cheesman. 


a  good  deal  during  liis  last  illness,  sat  up  with  him  several 
nights ;  part  of  the  time  he  appeared  rational  and  part  of 
the  time  appeared  to  know  nothing,  and  talked  strange. 
One  evening,  about  four  weeks  before  he  died,  I  was  there ; 
he  talked  very  strangely  ;  he  called  to  his  wife,  and  wanted 
her  to  get  up  and  wait  on  him ;  she  told  him  she  could  not 
wait  on  herself — she  was  utterly  unable  to  get  up ;  he  wanted 
to  know  what  ailed  her,  and  she  told  him  that  he  knew  that 
she  was  lame ;  then  lie  began  calling  for  his  son  John,  but 
she  insisted  he  should  let  him  alone,  as  he  had  had  no 
sleep  for  several  nights;  he  then  commenced  calling  for  me — 
I  was  standing  in  the  room  at  the  time;  I  told  him  I  was  up 
— but  he  kept  on  calling  for  me,  and  told  rue*  to  get  wide 
awake,  that  he  wanted  to  talk  to  me ;  I  put  my  hand  on  his 
shoulder,  and  told  him  I  was  there,  but  he  still  kept  calling 
for  me  two  or  three  minutes — this  was  before  the  4th  of 
March.  Witness  says  he  was  there  three  or  four  times  even 
after  that — sometimes  staid  part  of  the  evening,  and  some- 
times all  night;  sometimes  testator  remained  pretty  quiet, 
and  continued  so  all  the  evening,  at  other  times  he  would 
call  for  John  and  others,  and  when  they  would  come  to  him 
he  did  not  want  anything;  if  he  was  uneasy,  he  was  raving 
in  the  way  I  have  stated.  The  witness  says,  before  he  was 
so  sick  as  to  require  sitting  up  with,  he  did  not  notice  any- 
thing of  his  being  out  of  his  mind. 

William  C.  Garwood,  who  was  a  son-in  law,  visited  the  tes- 
tator but  three  times  during  his  last  sickness.  The  first  time 
he  appeared  to  be  very  low,  the  second,  to  have  his  proper 
mind  as  much  as  could  be  expected  for  a  man  of  his  age  and 
as  sick  as  he  was.  The  second  time  was  on  the  24th  of  Feb- 
ruary ;  he  was  then  quite  low,  did  not  talk  or  take  notice, 
but  knew  the  witness,  and  answered  a  question  or  two  ra- 
tionally. The  last  visit  was  eight  or  ten  days  before  his 
death,  and  the  testator  was  then  quite  low,  and  did  not  recog- 
nize the  witness  These  visits  were  made,  it  will  be  per- 
ceived, the  second  more  than  a  week  before,  and  the  third 
one  over  a  week  after  the  codicil  was  executed. 

VOL.  n.  Q 


254  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

Several  other  witnesses  were  examined,  who  visited  him 
more  or  less  frequently  during  his  sickness,  and  sometimes  sat 
up  with  him. 

Taking  all  the  testimony  upon  this  subject  together,  it  ex- 
hibits nothing  that  might  not  naturally  have  been  expected 
in  the  mental  and  physical  condition  of  a  patient  gradually 
sinking  under  the  effect  of  a  painful  but  fluctuating  disease. 
Sometimes  he  would  take  little  or  no  notice  of  those  about 
him,  sometimes  he  appeared  restless  and  his  mind  particularly 
affected,  sometimes  he  was  better,  and  then  his  mental  powers 
recovered  their  tone.  Nothing  indicating  permanent  alien- 
ation or  derangement  of  intellect  is  shown,  and  the  whole  tes- 
timony is  perfectly  consistent  with  the  fact,  sworn  to  by  the 
attesting  witness,  that  on  the  5th  of  March,  at  the  time  the 
codicil  was  executed,  his  testamentary  capacity  was  equal  to 
the  occasion  for  which  it  was  called  into  exercise.  The  wit- 
nesses who  speak  of  his  situation  on  the  night  of  the  eighth 
of  March,  John  Zane  and  Harrison  Cheesman,  gave  very 
much  the  same  testimony  as  Jacob  Johnson ;  and  there  is 
nothing  in  their  evidence  which  renders  it  either  impossible 
or  improbable  that,  in  the  afternoon  of  the  5th,  he  was  of 
sound  and  disposing  mind  and  memory.  Andrew  J.  Ware, 
a  grandson,  saw  him  on  the  4th,  but  the  old  gentleman  did 
not  recognize  him,  and  when  told  who  it  was,  said,  "  how  are 
you  Jacob  ?  " 

Ann  Hurff  saw  him  between  seven  and  eight  o'clock  on  the 
evening  of  the  5th,  after  the  codicil  was  executed ;  she  says 
he  did  not  know  her;  that  two  of  his  grandchildren,  Amanda 
and  Rebecca  Cheesman,  were  there,  and  he  did  not  know 
them ;  Mrs.  Hurff  went  to  his  bed,  and  asked  him  how  he 
was,  and  he  said,  I  do  not  know  you ;  I  told  him  who  I  was, 
and  he  made  no  reply.  The  grandchild  went  to  his  bed,  and 
precisely  the  same  scene  is  acted  over  again.  Charles  Billings 
and  the  girl  Emmeline,  who  say  they  saw  him  on  the  5th,  and 
the  latter  waited  on  him,  speak  of  his  not  knowing  people, 
not  speaking,  not  appearing  to  know  anything.  But  testi- 
mony of  this  character  amounts  to  very  little  when  opposed 


MAY  TERM,  1857.  255 

Turner  v.  Cheeaman. 

to  the  positive  evidence  of  the  attesting  witnesses.  A  sick 
man  laboring  under  a  physical  disease,  which  exertion  of  any 
kind  aggravated,  and  exposed  constantly  to  visits  and  addresses 
which  tended  to  disquiet,  and  probably  discomfort  him,  may 
have  declined  the  recognition  of  visitors  for  the  very  purpose 
of  avoiding  the  necessity  of  conversation.  It  is  remarkable 
that,  though  some  of  the  witnesses  express  opinions  that  he 
was  out  of  his  mind,  drawn  chiefly  from  his  silence,  there  was 
no  one  who  testifies  to  any  conduct  or  conversation  on  his  part 
which  shows  decided  mental  alienation. 

Instances  are,  it  is  true,  detailed  which  show  that  hia 
memory  of  recent  transactions  was  sometimes  at  fault ;  but 
this  is  incident  to  old  age.  It  does  not  appear  but  that  at  all 
times,  when  able  to  converse  at  all,  he  perfectly  understood 
and  comprehended  the  nature  and  extent  of  his  property  and 
the  circumstances  and  relations  of  the  objects  of  his  bounty. 

It  is  in  evidence,  too,  that  the  disposition  he  made  of  his 
homestead  farm,  in  the  codicil  of  the  5th  of  March,  was  dif- 
ferent from  that  which  he  had  often  before  indicated  as  his 
intention.  But  this  alone  is  no  evidence  of  imbecility.  Men 
of  sane  mind,  young  as  well  as  old,  in  health  as  well  as  in 
sickness,  often  do  this.  He  may  have  had  good  reasons  for 
what  lie  did.  The  preference  in  this  case  was  of  his  youngest 
son,  who  had. always  lived  with  him.  To  most,  if  not  all  the 
elder  children,  he  seems  to  have  made  advances  in  his  lifetime, 
and  so  far  as  the  case  is  before  this  court,  it  is  not  clear  that 
the  final  disposition  of  his  estate  was  to  any  great  extent  un- 
equal ;  for  it  is  by  no  means  certain  that  the  devise  of  the 
homestead  farm  embraced  any  of  the  new  land,  and  unless  it 
did,  the  inequality  is  not  very  great. 

No  importance  at  all  is  to  be  attached  to  the  mere  opinion 
of  witnesses  who  are  interested  in  breaking  the  codicil,  and 
very  little  to  the  testimony  as  to  the  declarations  of  Turner, 
the  executor.  The  caveators  could  have  called  him  as  a  wit- 
ness, and  declined  to  do  so,  and  this  fact,  taken  in  connection 
with  the  questionable  character  of  the  evidence  as  to  what  he 
said,  detracts  very  much  from  its  weight. 


256  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

There  can  be  no  serious  doubts  entertained  that,  up  to  tin- 
time  of  the  commencement  of  his  last  sickness,  the  testator 
had  capacity  enough  to  make  a  will,  certainly  no  previous  act 
or  word  of  his  is  shown  that  ought  to  create  a  doubt  about  it. 
Nor  am  I  able  to  find,  from  the  evidence  of  anything  he  said 
or  did  during  his  sickness,  that  his  mind  was  permanently 
prostrated,  or  his  reason  entirely  overthrown  by  it.  That 
he  was  occasionally  greatly  reduced  in  physical  ability  ;  that 
he  was  sometimes  so  low  as  to  be  unable  or  unwilling  to  con- 
verse ;  that  there  were  occasions  when  he  seemed  insensible ; 
that  in  certain  paroxysms  or  stages  of  suffering  he  was  irrita- 
ble, restless,  and  childish  in  his  conduct  and  expressions,  or 
even  appeared  to  be  unnatural,  are  all  phenomena  of  common 
occurrence  in  cases  of  severe  illness;  but  they  no  more  fix 
the  permanent  condition  of  the  mind  than  the  occasional  de- 
lirium of  a  fever,  or  the  prostration  and  temporary  insensi- 
bilities of  catalepsy.  This  species  of  evidence  may  always  be 
overcome  by  the  clear  and  conclusive  evidence  of  subsequent 
sanity— sanity  at  the  time  of  the  performance  of  the  act  in 
question. 

The  law  looks  only  to  the  competency  of  the  understand- 
ing, and  neither  age  nor  sickness,  nor  extreme  distress  OP 
debility  of  body,  will  affect  the  capacity  to  make  a  will,  if 
sufficient  intelligence  remains.  The  failure  of  memory  is  not 
sufficient  to  create  the  incapacity,  unless  it  be  quite  total,  or 
extend  to  his  immediate  family  and  property.  The  amount 
of  mental  capacity  must  be  equal  to  the  subject  matter  with 
which  it  has  to  deal :  a  man  may  be  competent  to  make  a 
codicil,  changing  in  two  or  three  particulars  the  prior  dispo- 
sitions in  his  will,  who  would  be  incompetent  to  the  perform- 
ance of  acts  requiring  the  exercise  of  far  greater  intellect  and 
judgment.  Vanalstine  v.  Hunter,  5  Johns.  Ch.  R.  148;  Har- 
rison v.  Rowan,  3  Wash.  C.  C.  R.  580. 

Or,  as  was  said  by  Washington,  J.,  in  Stevens  v.  Vandcve, 
4  Wash.  C.  C.  R.  267,  "  He  must,  in  the  language  of  the 
law,  be  of  sound  and  disposing  mind  and  memory.  He  must 
have  memory.  A  man  in  whom  this  faculty  is  totally  extin- 


MAY  TERM,  1857.  257 


Turner  v.  Checsman. 


guished  cannot  be  said  to  possess  understanding  to  any  de- 
gree whatever  or  for  any  purpose.  But  his  memory  may  be 
very  imperfect;  it  may  be  greatly  impaired  by  age  or  dis- 
ease. He  n^ay  not  be  able  at  all  times  to  recollect  the 
name,  the  persons,  or  the  families  of  those  with  whom  he 
had  been  intimately  acquainted;  may  at  times  ask  idle 
questions,  and  repeat  those  'which  had  before  been  asked 
and  answered,  and  yet  his  understanding  may  be  sufficiently 
sound  for  many  of  the  ordinary  transactions  of  life.  He 
may  not  have  sufficient  strength  of  memory  and  vigor  of 
intellect  to  make  and  digest  all  the  parts  of  a  contract,  and 
yet  be  competent  to  direct  the  distribution  of  his  property 
by  will.  This  a  subject  which  he  may  have  often  thought 
of,  and  there  is  probably  no  person  who  has  not  arranged 
such  a  disposition  in  his  mind  before  he  committed  it  to 
writing.  The  question  is  not  so  much  what  was  the  degree 
of  memory  possessed  by  the  testator  as  this,  had  he  a  dis- 
posing memory?  Was  he  capable  of  recollecting  the  pro- 
perty he  was  about  to  bequeath,  the  manner  of  distributing 
it,  and  the  objects  of  his  bounty?  To  sum  up  the  whole  in 
the  most  simple  and  intelligible  form,  were  his  mind  and 
memory  sufficiently 'sound  to  enable  him  to  know  and  to 
understand  the  business  in  which*  he  was  engaged  at  the 
time  when  he  executed  his  will?" 

Great  stress  has  been  laid  upon  the  inequality  in  the  dis- 
position of  the  testator's  estate,  as  created  by  the  codicil ; 
and  the  evidence  that  the  testator  had  previously,  on  several 
occasions,  expressed  an  intention  to  devise  his  estate  equally 
among  his  children.  If  we  are  clear  that  this  is  the  testa- 
tor's codicil,  and  expresses  the  will  of  a  sound  and  disposing 
mind,  we  cannot  look  beyond  it  for  his  reasons  or  his  mo- 
tives for  doing  what  he  did.  The  right  of  absolute  domin- 
ion which  every  man  has  over  his  own  property  is  sacred 
and  inviolable.  The  argument  is  only  legitimately  applica- 
ble so  far  as  it  affects  the  question  of  the  testator's  capacity 
at  the  time. 

But  the  force  of  the  argument  itself  depends  chiefly  on 


258  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

the  construction  which  the  caveators  put  on  the  language  of 
the  clause  in  the  codicil  devising  the  homestead  farm  to 
John.  They  contend  that  it  embraces  a  real  estate  worth 
Borne  $22,500,  while  the  proponents  of  the  codicil  construe  it 
as  only  conveying  the  cleared  arable  land,  worth  some  $5000. 
It'  the  latter  construction  be  the  true  one,  the  inequality,  as 
before  observed,  is  not  so  great  as  to  cause  surprise.  It  was 
in  favor  of  the  youngest  son,  for  whom  no  previous  provision 
had  been  made,  who  had  always  lived  at  home,  and  was 
under  age  and  unmarried.  The  other  children  seemed  all 
to  have  been  settled,  and  several  of  them,  at  least,  had  had 
advances  of  land.  Then  as  to  the  testator's  previous  decla- 
rations of  his  intentions  to  divide  his  property  equally,  I 
have  already  referred  to  the  fact,  that  he  expressed  himself 
at  the  time  he  executed  the  codicil,  or  immediately  after,  as 
having  for  some  time  contemplated  the  change  in  question, 
and  having  been  anxious  and  troubled  lest  he  should  not 
have  lived  to  make  it. 

Upon  the  whole  case,  I  am  clearly  of  the  opinion  that  the 
caveators  have  failed  to  show  want  of  capacity  to  execute 
the  codicil  on  the  5th  of  March,  and  that  it  ought  to  be  ad- 
mitted to  probate. 

THE  ORDINARY.  On  the  9th  of  February,  1853,  Peter 
Cheesman  executed  a  writing  as  his  last  will  and  testament.  On 
the  4th  of  March,  1856,  he  executed  a  paper,  purporting  to 
be  a  codicil  to  his  will  of  February,  1853.  On  the  25th  of 
March,  1856,  he  died.  The  above  instruments  of  writing  were 
offered  for  probate  to  the  surrogate  of  the  county  of  Camden. 
To  the  proof  of  the  will  dated  February,  1 853,  no  objection 
was  made.  The  respondent  filed  a  caveat  against  probate  of 
the  codicil.  After  investigation  before  the  Orphans  Court  of 
the  county  of  Camden,  the  judges  being  equally  divided  as  to 
the  admission  of  the  codicil  to  probate,  and  order  was  made 
rejecting  it.  This  is  an  appeal  from  that  order.  After  a 
careful  examination  of  the  evidence,  think  the  order  made 


MAY  TERM,  1S57.  259 


Turner  v.  Cheesman. 


by  the  Orphans,  Court  was  erroneous,  and  that  the  codicil 
should  have  been  admitted  to  probate. 

By  the  will  of  1856,  the  decedent  devised  his  homestead 
farm  to  his  wife  during  her  life,  and  at  her  death  to  be 
equally  divided  among  his  children.  By  the  codicil,  he  de- 
vises his  homestead  farm,  after  the  death  of  his  wife,  to  his 
son,  John  S.  Cheesman.  This  is  the  only  material  difference 
made  by  the  codicil,  and  has  given  rise  to  this  controversy. 

The  grounds  of  objection  made  to  admitting  the  codicil  to 
probate  are  two — first,  that  the  testator,  at  the  time  of  its 
execution,  was  not  of  sound  and  disposing  mind  and  memory ; 
and — second,  that  while  his  mind  was  debilitated  and  dis- 
tracted by  the  disease  under  which  he  was  suffering,  his  two 
sons,  Benjamin  and  John,  took  advantage  of  the  testator's 
situation,  and  by  exerting  an  undue  influence,  induced  the 
execution  of  the  codicil. 

On  the  25th  of  January,  1856,  the  testator  was  taken  ill 
of  the  sickness  of  which  he  died.  It  was  a  chronic  affection, 
designated  by  the  physicians  hydro  thorax,  or  an  accumu- 
lation of  water  in  the  cavity  of  the  chest.  The  disease  is  one 
fluctuating  in  its  character;  but  in  the  case  of  the  testator 
was  so  violent  as,  upon  a  man  of  his  age,  to  leave  no  hope  of 
a  permanent  cure.  He  was  about  eighty-five  years  old  at 
the  time  of  his  death. 

There  certainly  is  nothing  in  the  evidence  to  justify  the 
entertainment  of  a  doubt  as  to  the  entire  competency  of  the 
testator  to  make  a  will  prior  to  his  last  sickness.  Our  in- 
quiry, therefore,  is  confined  to  a  very  limited  period — that 
intevening  between  the  25th  of  January,  1856,  and  the  25th 
of  March  following,  which  was  the  day  of  the  testator's  death. 
It  was  in  this  interval  of  time  that  the  codicil  was  executed. 

I  think  this  is  one  of  those  cases  which  must  depend  very 
much  upon  the  testimony  of  the  subscribing  witnesses — and 
for  this  reason ;  there  is  no  pretence,  or  at  any  rate  no  evi- 
dence, to  justify  taking  the  ground  that  there  was  any  per- 
manent continued  derangement  or  prostration  of  mind, 
such  as  would  render  the  testator  incompetent  to  make  his 


260  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

•will.  Jacob  Johnson,  one  of  the  strongest  witnesses  for  the 
caveat,  and  upon  whom  the  respondent  places  much  reliance, 
says,  he  was  with  the  testator  a  good  deal  during  his  last 
sickness,  and  sat  up  with  him  several  nights — part  of  the 
time  he  appeared  to  be  rational,  and  part  of  the  time  ap- 
peared to  know  nothing.  lie  further  says,  before  he  was 
so  sick  as  to  require  sitting  up  with,  I  did  not  notice  any- 
thing of  his  being  out  of  his  mind. —  William  C.  Garwood, 
the  son-in-law  of  the  testator,  a  witness  for  the  caveat,  says, 
when  he  saw  the  testator,  six  weeks  before  his  death,  he 
seemed  to  have  his  proper  mind  as  much  as  could  be  ex- 
pected for  a  man  of  his  age,  and  as  sick  as  he  was. — John 
Lane  says,  he  could  not  say  the  old  man  was  right  all  the 
time,  or  wrong  all  the  time.  This  is  a  fair  specimen  of  the 
evidence  of  the  witnesses  who  were  sworn  in  support  of  the 
caveat.  Most  of  the  witnesses  examined  on  behalf  of  the 
caveator  have  their  feelings  enlisted  in  this  controversy. 
They  are  nearly  connected  with  the  family,  and  certainly 
feel  a  desire  to  defeat  the  codicil.  I  am  doing,  and  intend 
them  no  injustice  in  saying  this;  for  I  could  not  fail  to  notice 
in  this  case,  in  reference  to,  I  think,  all  the  witnesses  who 
were  in  a  position  to  feel  an  interest  in  the  controversy,  that 
they  did  not  deny  nor  attempt  to  conceal  upon  which  side 
their  feelings  were  enlisted.  I  place  more  reliance  upon  their 
evidence  for  their  candor  in  this  particular. 

What  was  the  state  of  mind  of  the  testator  on  the  5th  of 
March,  1856,  the  date  of  the  codicil?  The  will  of  1856  was 
drawn  by  Edward  Turner,  and  he  also  drew  the  codicil.  Mr. 
Turner's  character  for  probity  and  as  a  man  of  intelligence 
is  not  questioned.  He  was  named  as  one  of  the  executors  in 
the  original  will.  He  is  in  no  way  interested  in  the  question 
that  has  arisen  as  to  the  codicil.  Whatever  may  be  the  issue 
as  to  it,  his  executorship  is  not  affected.  He  docs  not  ap- 
pear to  have  taken  any  part  in  this  controversy,  and  has  not 
manifested  any  interest  in  favor  of  any  of  the  parties.  He  has 
not  been  examined  as  a  witness;  but  it  is  something  in  favor 
of  the  validity  of  the  codicil,  that  it  was  drawn  by  him.  As 


MAY  TERM,  1857.  261 

Turner  t.  Cheesman. 

he  was  well  acquainted  with  the  testator,  and  possessed  his 
confidence,  and  was  intrusted  by  him  to  draw  and  execute 
his  will,  we  cannot  suppose  that  he  would  have  drawn  a 
codicil,  and  have  permitted  the  testator  to  have  executed  it 
at  a  time  when  he  was  not  competent  to  dispose  of  his  pro- 
perty. We  have  the  fact  that,  on  the  day  before  the  will 
was  executed,  Mr.  Turner  went  to  the  testator's  house,  and 
received  his  instructions  as  to  drawing  the  codicil.  What 
transpired  at  the  time,  or  who  was  present  when  the  instruc- 
tions were  given,  if  any  one  besides  Mr.  Turner,  there  is  no 
witness  who  testifies.  The  fact  of  the  testator  having  him- 
self given  instructions  to  Turner  appears  from  a  remark  made 
at  the  time  of  the  execution  of  the  codicil.  When  Mr.  Tur- 
ner, in  reading  the  will,  read  forty  acres,  the  old  man  inter- 
rupted him,  and  said,  "  1  told  you  twenty." 

The  witnesses  to  the  codicil  are  Samuel  D.  Sharp  and 
Joseph  Kean.  We  have  the  opinion  of  both  of  them,  that 
at  the  time  of  the  execution  of  the  codicil  the  testator  was 
competent.  They  detail  all  the  circumstances  that  took  place 
at  the  time;  and,  as  related  by  them,  what  then  transpired 
would  seem  fully  to  justify  the  opinion  they  formed  as  to 
his  competency.  The  mere  fact  of  a  man's  having  affixed 
his  signature  to  a  will  as  a  subscribing  witness  does  not,  it 
appears  to  me,  of  itself  entitle  his  opinion,  as  to  the  compe- 
tency of  the  testator,  to  any  more  weight  than  that  of  any 
one  else  who  may  be  called  upon  to  testify.  If  the  subscribing 
witness  is  a  stranger,  which  is  sometimes  the  case,  called  upon 
to  meet  the  exigency  of  the  moment,  and  having  no  oppor- 
tunity in  a  sick  chamber  to  ascertain  and  judge  of  a  man's 
capacity,  his  opinion  is  not  certainly  entitled  to  as  much 
weight  as  that  of  a  friend  who  saw  the  testator  about  the 
same  time,  and  who  was  afforded  an  opportunity  of  con- 
versing with  him  and  testing  the  sanity  of  his  mind.  The 
opinion  of  a  subscribing  witness  is  entitled  to  weight  from, 
the  same  consideration  as  that  of  any  other  man  who  is  not 
a  subscribing  witness.  The  means  which  he  enjoys  of  form- 
ing a  correct  opinion  gives  weight  to  his  opinion.  The  opin- 


262  PREROGATIVE  COURT. 

Turner  v.  Cheesman. 

ion  of  any  one — whether  a  subscribing  witness  or  not — la 
but  of  little  value,  unless  he  can  give  us  the  reasons  for  the 
opinion  he  expresses,  and  can  show  that  lie  had  an  oppor- 
tunity to  justify  him  in  forming  the  opinion  he  expresses.  If 
the  subscribing  witnesses  are  acquaintances  and  friends  of 
the  testator,  familiar  with  his  peculiarities;  and  if,  added  to 
this,  they  are  men  of  intelligence,  and  at  the  time  were 
afforded  an  opportunity  of  judging  of  the  testator's  state  of 
mind,  their  opinion  would  be  entitled  to  very  great  and  con- 
trolling consideration.  It  is  often  said  that  subscribing  wit- 
nesses are  those  called  by  the  testator  himself  to  attest  to 
his  capacity;  and  that,  on  this  account,  the  law  attaches 
great  weight  to  their  opinion.  But  it  most  frequently  hap- 
pens that  a  testator  gives  it  very  little  thought  as  to  who 
are  the  witnesses  of  his  will,  and  in  fact  has  nothing  to  do 
Avith  selecting  them,  but  leaves  it  altogether  to  the  scrivener 
who  draws  his  will.  An  individual,  called  into  a  sick  cham- 
ber to  witness  the  will  of  ail  invalid,  would  be  thought  des- 
titute of  good  breeding  and  impertinent  should  he  propound 
any  question  for  the  purpose  of  testing  the  sanity  of  the  man 
whose  will  he  is  called  upon  to  attest.  Such  an  occasion  is 
regarded  as  a  mere  business  one,  and  is  dispatched  with 
little  ceremony,  and  most  frequently  without  any  opportu- 
nity being  afforded  of  judging  of  the  state  of  mind  of  the 
man  who  executes  the  instrument.  Whether  a  subscribing 
witness  or  not,  we  must  look  at  the  intelligence  of  the  man, 
and  the  means  he  enjoyed  of  forming  the  opinion  which  he 
advances,  and  give  weight  to  his  opinion  accordingly. 

In  this  case  both  the  witnesses  were  friends  of  the  testator 
of  long  standing,  and  they  had  the  opportunity  afforded  them 
of  ascertaining  the  state  of  mind  of  the  testator  at  the  time 
of  the  transaction  of  which  they  testify.  Mrs.  Cheesman, 
the  wife  of  the  testator,  and  Mr.  Turner,  the  scrivener,  were 
present  with  the  witnesses,  and  they  all  saw  the  will  executed. 
It  was  not  done  in  haste,  but  in  a  manner  and  under  circum- 
stances that  afforded  a  full  opportunity  of  judging  whether 
the  testator  at  that  time  understood  the  business  he  was 


MAY  TERM,  1857.  263 


Turner  v.  Cheesman. 


transacting,  and  was  capable  of  performing  it.  Samuel  D. 
Sharp  was  a  subscribing  witness  to  the  will  to  which  this  was 
a  codicil.  He  was  therefore  a  very  suitable  person  to  be  called 
upon  as  a  witness  to  this  instrument.  The  testator  recognized 
the  witnesses,  and  conversed  with  them.  He  gave  directions 
to  his  son  to  get  in  wood,  and  keep  the  house  warm.  The 
codicil  was  read  over  to  him.  His  wife  asked  him  if  she 
should  go  out  of  the  room.  He  answered,  "  no,  you  can  stay 
in."  The  testator  stopped  Mr.  Turner  twice  while  he  was 
reading  the  codicil,  and  had  alterations  made,  and  gave  his 
reasons  for  the  alterations,  and  in  both  instances  gave  evidence 
of  memory  and  understanding.  After  the  alterations  were 
read  over  to  him,  he  said  they  were  right. 

After  the  execution  of  the  codicil,  the  witness,  James  Kean, 
sat  by  the  bedside,  and  conversed  with  the  testator.  He  said, 
addressing  the  witness, u  Jonas,  I  have  been  worried  about  this, 
for  fear  I  could  not  get  it  fixed."  He  then  stated  that,  having 
the  codicil  fixed,  he  was  satisfied.  He  reached  his  hand  over 
to  the  witness,  and  said,  "  I  am  now  ready  to  die ;  I  was  ready 
before  —all  but  that."  The  witness  says  he  had  been  acquainted 
with  the  testator  for  twenty  years ;  that  he  was  a  man  of  de- 
cision and  firmness;  and  from  the  conversation  he  had  with 
him  that  day,  and  a  few  days  before,  he  thought  he  had  the 
best  mind  of  any  man  of  his  age  he  had  ever  known. 

We  have  here  the  testimony  of  three  intelligent  and  disin- 
terested witnesses  in  favor  of  the  competency  of  the  testator 
at  the  time  the  codicil  was  executed.  Although  Mr.  Turner 
was  not  examined  as  a  witness,  the  position  he  occupies 
towards  all  the  parties — the  fact  of  his  receiving  the  instruc- 
tions as  to  the  codicil  the  day  before  its  execution,  and  his 
presence  at  the  time  superintending  its  execution — is  testi- 
mony as  strong  in  favor  of  the  testator's  competency  as  if  he 
had  given  direct  evidence  to  that  effect  as  a  witness  upon 
the  stand.  In  corroboration  of  these  witnesses,  we  have  the 
testimony  of  Doct.  Clarke.  From  the  8th  of  February  to  the 
7th  of  March,  the  testator  had  no  attending  physician.  Doct. 
Clarke  was  culled  in,  and  visited  him  for  the  first  time  on 


264  PREROGATIVE  COURT. 

Turner  ».  Cheesman. 

the  7th  of  March,  and  attended  him  as  his  physician  to  the 
time  of  the  testator's  death.  He  testifies  that  at  his  first 
visit  the  testator's  mind  was  perfectly  clear;  that  his  dis- 
ease had  no  direct  connection  with  his  mind,  and  would  not 
affect  his  mind  directly  as  fever  would  ;  that  he  saw  nothing 
about  his  case  which  would  lead  him  to  doubt  his  compe- 
tency to  make  a  will;  that  on  the  13th  of  March,  when  he 
next  visited  him,  he  found  him  pretty  much  the  same  as  at 
his  first  visit,  and  so  again  at  his  next  visit  on  the  17th  of 
the  same  month ;  that  on  the  20th  he  was  worse ;  on  the  23d 
he  was  insensible ;  on  the  24th  he  died.  He  explains  the 
characteristics  of  the  disease,  which  explanation  reconciles  the 
testimony  of  the  witnesses,  who  declare  that  at  the  times  they 
saw  him  lie  was  incompetent  to  make  a  will,  with  the  testi- 
mony of  the  subscribing  witnesses,  that  when  he  executed 
the  codicil  he  was  competent.  It  appears  to  me  that  there  is 
nothing  in  the  evidence  which  has  been  adduced  on  the  part 
of  the  caveator  to  invalidate  the  evidence  of  the  subscribing 
witnesses,  and  that  it  is  proved,  beyond  any  reasonable  doubt, 
that  the  testator,  at  the  time  he  executed  the  codicil,  was  of 
sufficient  sound  mind,  memory,  and  understanding  to  dispose 
of  his  property  by  will. 

As  to  the  other  objection  against  admitting  the  codicil  to  pro- 
bate— that  the  codicil  was  induced  by  undue  influence — I  do 
not  think  there  is  any  evidence  to  justify  the  charge.  There 
is  no  evidence  that  Benjamin  or  John  ever,  at  any  time,  had 
any  conversation  with  their  father  about  making  his  will. 
The  facts  that  Benjamin  once  said  he  was  going  to  try  to 
make  his  father  give  John  the  homestead  ;  that  when  it  was 
alleged  his  father  was  out  of  his  mind  John  denied  it;  that 
John  lived  with  his  father,  and  was  kind  and  attentive  to 
him  ;  that  he  went  after  the  witnesses  to  attest  the  will  ; 
that  John  said  his  father  was  going  to  make  his  will  in  Febru- 
ary, 1853,  (which  was  the  time  the  first  will  was  executed); 
and  that  Edward  Turner  was  coming  up  for  the  purpose; 
that  Benjamin  wanted  the  old  man  to  sell  his  timber  to  pay 
his  debts,  and  influenced  him  in  reference  to  the  management 


MAY  TERM,  1857.  265 


Turner  v.  Cheesman. 


of  his  property — these  are  all  the  facts,  or  the  principal  ones, 
relied  upon  to  show  undue  influence.  They  amount  to 
nothing  in  establishing  the  allegation,  that  the  codicil  in 
question  was  the  result  of  undue  influence,  exerted  either  by 
John  or  Benjamin  over  their  father.  Such  are  not  the  in- 
fluences which  the  law  regards  as  undue  or  illegal.  The  in- 
fluence must  be  such  as  to  destroy  the  free  agency  of  the 
man  over  whom  it  is  exerted,  whether,  threats  of  bodily  harm 
or  unceasing  importunities  to  a  man  on  his  death  bed,  or  by 
act  of  un kindness,  when  the  subject  of  it  is  in  the  power  and 
at  the  mercy  of  another;  if  the  individual  occupies  a  position 
towards  another,  dependent  upon  him  for  their  little  atten- 
tions and  conveniences,  which  alone  make  life  supportable, 
so  that  he  cannot  say  no  to  a  mere  request  that  is  made  of 
him ;  no  matter  how  little  the  influence,  if  the  free  agency  is 
destroyed,  it  vitiates  the  act  which  is  the  result  of  it.  "A 
testator  should  enjoy  full  liberty  and  freedom  in  the  making 
of  his  will,  and  possess  the  power  to  withstand  all  contradic- 
tion and  control.  That  degree,  therefore,  of  importunity  or 
undue  influence  which  deprives  a  testator  of  his  free  agency, 
which  is  such  as  he  is  too  weak  to  resist,  and  will  render 
the  instrument  not  his  free  und  unconstrained  act,  is  suffi- 
cient to  invalidate  it,  not  in  relation  to  the  person  alone 
by  whom  it  is  so  procured,  but  as  to  all  others  who  are  in- 
tended to  be  benefited  by  the  undue  influence."  5  Gill  & 
Johns.  30'2.  In  this  case  there  is  no  proof  at  all  of  either 
John's  or  Benjamin's  attempting  in  any  way,  by  word  or 
deed,  to  exert  any  influence  over  their  father  in  reference  to 
the  disposition  of  his  property. 

It  was  proved  that  the  old  man  repeatedly  declared  that 
it  was  his  intention  to  divide  his  property  equally  among 
his  children.  This  evidence  was  objected  to.  The  evidence 
is  competent.  Where  the  sanity  of  the  testator  is  in  ques- 
tion, and  where  undue  influence  is  sought  to  be  established, 
it  is  competent  to  give  in  evidence  the  declarations  of  the 
decedent  to  show  that  the  disposition  of  his  property  by  the 
writing  which  is  propounded  for  probate  is  in  opposition  to 


2G6 


PREROGATIVE  COURT. 


Garrison  v.  Executors  of  Garrison. 


his  intention,  as  manifested  by  his  repeated  declarations  upon 
the  subject.  The  declarations  in  this  case  amount  to  nothing. 
If  the  codicil  had  not  been  made,  the  disposition  of  the  testa- 
tor's property,  by  the  will  of  February,  1853,  was  as  incon- 
sistent with  his  repeated  declarations,  as  proved,  as  is  the 
disposition  made  of  his  property  by  this  codicil.  All  his  child- 
ren had  been  advanced  from  time  to  time  in  real  estate,  ex- 
cept his  son  John ;  and  whether  John  gets  more  by  the 
codicil  than  some  of  the  other  children  received  by  advance- 
ments, is  a  matter  of  doubt  and  dispute. 

I  think  that  the  competency  of  the  testator  is  established, 
and  that  the  allegation  of  undue  influence  is  not  proved.  The 
codicil  was  executed  with  all  the  formalities  required  by  law, 
and  is  entitled  to  be  admitted  to  probate. 

CITED  in  Lynch  v.  Clements,  9  C.  E.  Gr.  434. 


GARRET  GARRISON,  appellant,  and  EXECUTORS  OP  PETER  A. 
GARRISON'S  WILL,  respondents. 

On  a  question  of  testamentary  capacity,  evidence  of  the  opinions  of  wit- 
nesses, though  competent,  is  merely  preliminary  to  the  further  inquiry 
of  the  facts  and  circumstances  upon  which  their  opinions  are  formed. 

It  is  not  the  opinion  of  the  witness  upon  which  the  court  relies,  but  the 
court  draws  its  own  conclusion,  and  forms  its  own  judgment  from  the 
premises  which  have  produced  the  conviction  in  the  mind  of  the  witness. 

The  mere  opinion  of  a  subscribing  witness  is  entitled  to  no  more  weight 
with  the  court  than  that  of  any  other  witness. 

The  opinion  of  a  witness  who  is  a  stranger  to  the  testator,  and  who  sees  or 
hears  nothing  except  what  is  necessary  to  enable  him  to  attest  the  in- 
strument as  a  subscribing  witness,  is  not  as  much  to  be  relied  upon  as 
that  of  a  neighbor  and  familiar  acquaintance  of  the  testator.  The  opin- 
ion of  neither  is  of  any  weight  with  the  court,  except  as  it  proves  itself 
to  be  a  correct  and  sound  conclusion  from  facts  which  justify  and  war- 
rant it 

A  man  who  will  subscribe  an  instrument  attesting  that  the  testator  is  of 
sound  mind,  memory,  and  understanding,  and  then  repudiate  under  oath 
his  own  attestation,  does  not  occupy  a  position  that  will  justify  a  court 
in  giving  any  weight  to  his  own  opinion. 


FEBRUARY  TERM,  1858.  267 

Garrison  v.  Executors  of  Garrison. 
A.  B.  Woodruff  and  W.  Pennington,  for  appellant. 

D.  Barcalow  and  A.  0.  Zabriskie,  for  respondents. 

THE  ORDINARY.  This  writing  was  propounded  for  pro- 
bate, as  the  last  will  and  testament  of  Peter  A.  Garrison, 
deceased,  to  the  surrogate  of  the  county  of  Bergen.  A  caveat 
was  put  in  against  proving  it.  A  protracted  investigation 
was  had  before  the  Orphans  Court  of  the  county,  and  that 
court  unanimously  admitted  the  will  to  probate.  The  ca- 
veators  have  appealed  from  this  order  of  the  Orphans  Court 
to  this  court. 

There  are  two  objections  made  to  the  admission  of  the  will 
to  probate. 

First.  That  the  decedent  had  not  sufficient  mental  capacity, 
at  the  time  the  paper  was  executed,  to  make  a  will. 

Second.  That  either  in  consequence  of  fraud,  mistake,  or 
some  circumstance  beyond  the  decedent's  control,  the  contents 
of  the  writing  are  not  such  as  he  intended  they  should  be,  and 
that  therefore  the  writing  is  not  the  decedent's  will. 

Tin's  will  was  executed  on  the  26th  of  June,  1854.  The 
decedent  died  on  the  23d  day  of  July  following,  at  the  age 
of  sixty-three  or  four  years.  The  disease  which  caused  his 
death  was  consumption,  produced  by  the  excessive  use  of 
ardent  spirits. 

As  to  the  evidence  of  the  general  capacity  of  the  testator 
for  the  ordinary  business  of  life,  we  have  the  following  facts, 
which  were  not  controverted.  He  was  the  owner  of  a  large 
farm,  which  he  inherited  from  his  father,  in  the  county  of 
Bergen,  and  another  farm,  of  some  hundred  acres,  adjoining 
the  same,  which  he  had  acquired  himself.  He  carried  on  the 
business  of  farming  for  some  thirty-five  years  immediately 
preceding  his  death.  He  was  the  overseer  of  his  own  farm, 
and  superintended  and  carried  it  on  without  the  agency  or 
aid  of  any  one  else.  Most  of  the  time  his  family  consisted 
of  several  members.  He  was  always  the  head  of  his  family, 
and,  as  such,  was  always  regarded  and  respected  by  its  in- 


268  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

mates.  He  bought  and  sold  both  real  and  personal  estate, 
made  his  own  bargains,  executed  papers,  kept  his  own  ac- 
counts, invested  his  money  and  received  the  interest,  and 
transacted  all  business  appertaining  to  the  management  of 
his  property  and  his  domestic  affairs  without  even  the  friendly 
advice  or  interference  of  any  one.  During  all  this  time  there 
is  no  evidence  of  his  ever  having  even  once  made,  or  of  his 
having  proposed  to  make  an  improvident  bargain,  or  of  com- 
mitting a  mistake  of  the  most  trivial  kind  in  all  these  vari- 
ous transactions  from  which  the  inference  could  be  deduced 
that  he  was  not  perfectly  competent  to  their  transaction. 
This  superintendence  and  management  of  his  affairs  con- 
tinued to  the  day  of  his  death ;  and  there  is  nothing  in 
the  case  to  show  that  any  one,  during  his  life,  except  one 
single  individual,  and  he  a  mere  passing  acquaintance,  ex- 
pressed the  opinion  that  he  was  not  fully  competent  to  man- 
age his  own  affairs.  And  yet  many  respectable  witnesses 
testify  that,  during  the  few  months  preceding  his  death,  and 
more  particularly  about  the  time  of  the  execution  of  this 
will,  he  was  not  of  sufficient  mental  capacity  to  transact 
business,  and  to  dispose,  by  last  will  and  testament,  of  that 
property  which  he  was  from  day  to  day  managing  with  pru- 
dence and  judgment.  It  is  my  duty,  therefore,  to  look  at 
the  facts  upon  which  such  opinions  are  based,  and  to  deter- 
mine whether  they  justify  the  conclusion  to  which  the  wit- 
nesses have  arrived.  The  very  best  evidence  of  a  man's 
capacity  to  dispose  of  his  property  by  last  will  and  testa- 
ment is  the  fact  of  his  management  and  disposition  of  it,  in 
every  other  respect,  with  prudence  and  judgment.  It  is  diffi- 
cult to  conceive  how  it  is  possible  for  a  man  to  have  the  sole 
control  of  his  property,  to  buy  and  sell  with  judgment,  and 
to  dispose  of  the  proceeds  judiciously,  and  yet  deny  to  him 
the  capacity  of  saying  how  his  property  shall  be  disposed  of 
when  death  deprives  him  of  his  personal  control  over  it. 
The  capability  of  the  testator  to  discharge  the  duties  of  a 
public  situation  affords  a  strong  presumption  of  his  capacity 
to  make  a  will.  While  v.  Wdaon,  13  Ves.  87. 


FEBRUARY  TERM,  1858.  269 

Garrison  v.  Executors  of  Garrison. 

On  both  skies  witnesses  have  been  required  to  give  their 
opinions  as  to  the  capacity  of  the  testator.  This  evidence  is 
competent;  it  is  merely  preliminary  to  the  further  inquiry 
of  the  facts  and  circumstances  upon  which  these  opinions  are 
formed.  It  is  not  the  opinion  of  the  witness  upon  which  the 
court  relies,  but  the  court  draws  its  own  conclusion  and 
forms  its  own  judgment  from  the  premises  which  have  pro- 
duced the  conviction  in  the  mind  of  the  witness.  The  mere 
opinion  of  a  subscribing  witness  is  entitled  to  no  more  weight 
with  the  court  than  that  of  any  other  witness.  It  is  true  lie 
is  called  upon  by  the  testator,  as  his  witness  of  the  execution 
of  the  instrument  and  of  his  competency  to  make  a  will, 
and  the  theory  is,  that  "  the  attesting  witnesses  to  a  Avill  are 
regarded  in  the  law  as  placed  around  the  testator  in  order 
that  no  fraud  may  be  practised  upon  him  in  the  execution  of 
the  will,  and  to  ascertain  and  judge  of  his  capacity."  1  Jar- 
man  73.  Our  experience  in  these  matters  is  sufficient  to 
satisfy  vis  that  the  subscribing  witnesses  seldom  if  ever  take 
any  pains  to  ascertain  the  capacity  of  the  testator,  and  are 
generally  those  who  know  least  of  his  general  character  and 
disposition  or  of  his  mental  capacity.  As  a  general  thing, 
very  little  regard  is  paid  by  the  testator  to  the  character  of 
the  individuals  who  are  called  upon  as  the  attesting  wit- 
nesses to  this  most  solemn  and  important  act.  Their  duty  is 
discharged  by  their  formal  attestation  of  the  instrument; 
and  any  effort  on  their  part  to  ascertain  the  state  of  mind  of 
the  testator,  or  the  fact,  whether  he  was  the  dupe  of  others 
who  were  more  active  in  the  transaction,  and  upon  whom 
the  testator  was  reposing  his  confidence,  would  be  regarded 
as  inquisitive,  and  as  an  unwarrantable  interference  with 
matters  which  did  not  concern  them.  The  opinion  of  a  wit- 
ness who  is  a  stranger  to  the  testator,  and  who  sees  or  hears 
nothing  except  what  is  necessary  to  enable  him  to  attest  the 
instrument  as  a  subscribing  witness,  is  not  as  much  to  be  re- 
lied upon  as  that  of  a  neighbor  and  familiar  acquaintance  of 
the  testator.  The  truth  is,  the  opinion  of  neither  is  of  any 
weight  with  the  court,  except  as  it  proves  itself  to  be  a  cor- 

YOL.  II.  B 


270  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

rect  and  sound  conclusion  from  facts  which  justify  and  war- 
rant it.  A  man  who  will  subscribe  an  instrument  attesting 
that  the  testator  is  of  sound  mind,  memory,  and  understand- 
ing, and  then  repudiate  under  oath  his  own  attestation, 
does  not  occupy  a  position  that  will  justify  a  court  in  giving 
any  weight  to  his  rut-re  opinion.  A  will  may  be  sustained 
although  all  the  subscribing  witnesses  depose  to  the  inca- 
pacity of  the  deceased.  Le  Breton  \.  Fletclier,  2  Hagg.  568 ; 
Lowe  v.  Jolliffe,  1  Sir  Wm.  Bl.  365;  SJtelford  on  Lunacy 
54,  55.  And  it  is  a  frequent  occurrence  for  a  will  to  be  re- 
fused probate,  notwithstanding  the  strongest  kind  of  testi- 
mony in  support  of  the  mental  capacity  of  the  decedent.  I 
have  thought  proper  to  say  more,  as  to  the  weight  to  be 
given  to  the  evidence  of  a  subscribing  witness,  than  perhaps 
is  called  for  by  this  particular  case.  But  in  several  cases, 
lately  argued  before  this  court,  an  undue  weight,  it  seemed 
to  me,  was  attached  to  the  opinions  of  subscribing  witnesses, 
and  an  idea  seemed  to  prevail  that  a  court  ought  not  to 
scrutinize  as  closely  the  facts  from  which  such  witnesses 
formed  their  opinions  as  those  which  were  the  base  upon 
which  the  opinions  of  other  witnesses  rested.  The  observa- 
tion of  Swinburn  is  applicable  to  all  witnesses — whether  at- 
testing or  otherwise — "it  is  not  sufficient  for  a  witness  to 
depose  that  the  testator  was  mad  or  beside  his  wits,  unless  a 
sufficient  reason  can  be  given  to  prove  this  deposition,  as 
that  he  saw  him  do  such  acts,  or  heard  him  speak  such 
words,  as  a  person  having  reason  would  not  have  done  or 
spoken."  Swinburn  72. 

Let  us  examine  with  some  particularity  the  testimony,  in 
order  to  extract  from  it  the  facts  and  circumstances  from 
which  a  conclusion  is  drawn  unfavorable  to  the  testamentary 
capacity  of  the  decedent.  I  will  take  the  witnesses  upon 
whom  the  caveators  mainly  rely  in  resisting  the  proof  of  the 
will. 

Cornelius  H.  Van  Houien  expresses  the  opinion  that  the 
testator  was  incompetent  for  business — that  his  faculties  were 
pretty  well  destroyed — that  his  miud  was  gone.  The  witness 


FEBRUARY  TERM,  1858.  271 


Garrison  t'.  Executors  of  Garrison. 


says  he  never  had  any  business  transaction,  with  the  deceased, 
and  that  his  acquaintance  with  him  was  "a  mere  street  or 
passing  acquaintance."  The  foundation  for  this  witness'  un- 
favorable opinion  was  what  occurred  at  two  interviews  be- 
tween them.  The  first  was  in  March  or  April,  1853,  when 
they  met  at  a  vendue.  The  witness  says,  "  he  was  alone, 
standing  at  the  farm  at  a  vendue  at  Van  Embergh's;  I 
walked  up  to  him,  and  asked  him  how  lie  got  along;  he 
shook  his  head,  and  said  he  did  not  know;  then  I  told  him 
he  looked  bad,  and  then  he  used  the  words  again,  /  don't 
know  ;  and  then  he  told  me  he  had  lost  his  wife ;  I  knew  it 
before  she  was  buried.  Then  he  kind  of  made  a  motion  with 
his  hand,  and  acted  very  singular;  but,  says  he,  I  am  a 
speculator.  What  do  you  speculate  in,  I  said.  Well,  says 
he,  everything — so  I  looked  at  him  and  he  began  to  grin. 
So  then  he  asked  me  who  I  was ;  well,  then  I  told  him  who 
I  was.  "Well,  he  says,  I  don't  know  you  ;  I  then  told  him, 
if  he  did  not  know  me,  he  did  not  know  much  at  all."  This 
singularity  of  conduct  is  accounted  for  by  the  witness  him- 
self. The  witness  discovered  at  once  that  it  was  the  result 
of  intoxication.  He  told  deceased  that  he  had  been  drinking 
too  much,  and  walked  away  from  him.  The  second  inter- 
view referred  to  by  the  witness  was  in  February,  1854,  in 
Paterson.  The  deceased  was  with  his  black  man,  who,  at 
the  moment  witness  saw  him,  was  helping  deceased  out  of  his 
wagon.  Witness  asked  him  how  he  did,  when  "he  looked 
around  kind  of  wild,  and  asked  his  black  man  who  that  was." 
The  witness  says,  "  J  saw  he  was  pretty  well  drunk,  so  I 
walked  off,  and  I  have  not  seen  him  since."  The  witness 
saw  him  at  another  time,  when  he  does  not  say  he  was  under 
the  influence  of  liquor,  and  at  that  time  he  says  he  talked 
rationally.  The  witness  says  he  formed  his  opinion  from  the 
talk  and  actions  and  peculiar  laugh  of  the  deceased;  and  yet, 
when  he  was  sober,  there  is  no  pretence  of  his  ever  having 
exhibited  to  the  witness  any  of  these  peculiarities.  They 
were  all  perfectly  natural  to  a  man  under  the  influence  of 
liquor ;  and  it  is  very  manifest,  from  all  the  witness  says, 


272  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

that,  according  to  his  own  observation,  the  actions  and  re- 
marks which  he  considered  as  evidence  of  mental  aberration 
were  not  observable  when  deceased  was  sober. 

The  next  witness  called  upon  by  the  caveators  was  James 
B.  Beam.  He  was  a  nephew  of  the  testator's  wife,  was  in 
the  habit  of  visiting  the  testator  frequently ;  their  families 
were  on  friendly  terms.  The  witness  testifies  to  many  in- 
terviews between  himself  and  testator,  and  details  the  con- 
versations. They  were  upon  the  subject  of  the  testator's 
property,  his  relations,  and  domestic  concerns,  and  upon  his 
intended  disposition  of  his  property.  These  conversations 
the  witness  testifies  to  as  all  perfectly  rational,  and  as  they 
are  detailed  by  the  witness  they  appear  to  be  so.  The  wit- 
ness does  not  mention  one  fact,  during  their  long  and  familiar 
intercourse,  from  which  the  inference  can  be  drawn  that  he 
was  not  of  sufficient  mental  capacity  to  make  a  will.  He 
says,  "whenever  I  saw  him  he  always  talked  rational."  The 
witness  does  not  express  an  opinion  unfavorable  to  the  testa- 
tor's capacity.  He  says  that  deceased  was  an  intemperate 
man,  and  that  he  never  saw  him  when  he  had  not  been 
drinking  more  or  less;  that  he  had  seen  him  when  his  drink- 
ing habits  would  not  interfere  with  any  particular  business 
he  might  have  on  hand,  and  that  he  had  seen  him  in  liquor 
when  he  would  consider  him  incapable  of  attending  to  any 
particular  business.  And  the  witness  adds,  "any  man  in 
liquor  I  consider  incapable  of  attending  to  business;  I  don't 
know  that  it  would  interfere  with  his  judgment  particularly." 
He  further  says,  he  can't  say  he  ever  observed  any  particular 
change  in  testator's  mind  from  the  time  he  first  knew  him 
until  the  Monday  previous  to  his  death ;  and  that  he  never 
saw  him,  when  he  was  sober,  that  he  was  unfit  to  do  business 
until  up  to  the  time  of  the  Monday  mentioned. 

Col.  JosiaJi  Beam,  whose  sister  the  testator  married,  men- 
tions no  fact  from  which  he  is  willing  to  infer  the  testator's 
incapacity.  He  had  seen  him  when  he  was  in  great  grief 
occasioned  by  the  death  of  his  wife.  He  would  pull  his  hair, 
and  say  he  was  crazy,  but  at  such  times  the  conversations 


FEBRUARY  TERM.  1858.  273 

Garrison  v.  Executors  of  Garrison. 

they  had  together  showed  the  testator  was  perfectly  rational ; 
he  says  he  saw  no  change  in  the  testator's  mind  up  to  June, 
the  day  before  the  will  was  made,  and  that  he  did  his  busi- 
ness as  well  as  other  men  about  the  neighborhood.  The  wit- 
ness saw  him  the  day  before  the  will  was  drawn,  and  says, 
that  on  that  day  he  could  not  possibly  have  composed  his 
mind  so  as  to  dispose  of  his  estate,  nor  any  other  man  in  his 
situation.  The  witness  describes  that  situation.  It  was  great 
bodily  suffering  from  the  disease  which  had  seized  upon  him ; 
and  the  discomposure  of  his  mind  was  owing  to  the  suffering 
Df  the  body. 

Rebecca  Garrison  is  the  most  important  witness  produced 
on  the  part  of  the  caveators ;  and  if  she  cannot  state  facts 
and  circumstances  connected  with  the  deceased,  from  which 
the  conclusion  can  be  drawn  that  he  had  not  sufficient  mind 
to  enable  him  to  dispose  of  his  estate  with  understanding 
and  reason,  then  that  fact  cannot  be  established.  She  was 
the  sister  of  testator's  wife,  and  had  lived  in  the  family  since 
the  year  1850.  Since  the  death  of  the  testator's  wife,  in 
December,  1852,  she  had  the  charge  of  the  domestic  affairs 
of  the  family.  She  always  ate  with  him  at  his  table,  con- 
versed freely  with  him  about  all  his  business  matters  and  his 
troubles,  and  was  his  only  confidant  after  his  wife's  decease. 
She  knew  more  about  him  than  any  other  living  person. 
She  was  a  most  willing  witness  on  behalf  of  the  caveators, 
and  they  have  obtained  from  her,  as  a  witness,  the  full 
benefit  of  all  she  knew  to  their  advantage.  The  first  cir- 
cumstance the  witness  details  was  an  occurrence  in  February, 
previous  to  the  testator's  death.  As  the  testimony  of  this 
witness  is  so  important,  I  shall,  in  referring  to  it,  give  the 
facts  she  states  in  her  own  language.  She  says :  "  the  last 
of  February  of  last  year  the  testator  left  home  to  go  to  Bar- 
tholf's;  the  sun  was  about  an  hour  high;  I  asked  him  how 
long  he  was  going  to  stay ;  he  told  me  he  didn't  know 
whether  he  would  stay  till  bedtime  or  not ;  I  told  him  I 
would  wait,  and  would  not  go  to  bed  until  he  came  home; 
he  said  I  must  not  be  afraid;  my  son  was  with  him.  He 


274  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

came  home  about  seven  o'clock  in  the  evening ;  he  came  to 
the  gate,  and  told  my  son  uncle  Peter  was  come;  he  stepped 
on  the  stoop,  and  knocked  at  the  door;  I  never  knew  him  to 
knock  at  the  door  before;  I  said  come  in;  he  opened  the 
door,  and  came  a  little  distance  on  the  floor,  and  asked  if  he 
could  stay  there,  and  my  boy  told  him  yes,  and  he  thought 
he  was  joking.  He  did  not  appear  to  be  in  liquor;  he  looked 
very  wild  when  he  came  in,  and  asked  if  he  could  stay ;  he 
then  turned  round,  and  went  out  again,  and  went  through 
the  little  gate  again  and  big  gate,  and  went  up  the  road  as 
fast  as  he  could  step.  I  told  my  son  to  go  after  him,  and 
fetch  him  back ;  he  went  after  him,  and  fetched  him  back  in 
the  house.  He  said,  when  he  came  in,  he  was  not  at  home 
— it  was  not  his  house,  it  was  other  people's  house.  Then 
lie  took  the  candle,  and  opened  the  middle  door,  and  went 
into  the  entry,  and  holding  up  the  candle,  and  looking  all 
about,  he  said,  this  is  not  my  house,  it  is  other  people's 
house;  and  when  he  was  alone  in  the  entry  I  peeped  in  to 
see  what  he  was  doing,  and  he  was  talking  to  himself.  In 
my  opinion  he  was  not  in  his  right  mind  at  all  by  his  ap- 
pearance. Then  he  came  out  of  the  entry,  and  went  out  of 
doors  the  second  time ;  he  came  out  of  the  middle  door  again, 
and  said  it  was  not  his  house,  and  he  was  going  home.  My 
son  went  after  him  again,  for  the  second  time,  and  got  him 
by  the  corner  of  the  granary,  and  asked  him  to  come  in. 
Testator  then  had  a  pen-knife  in  his  hand  open — it  was  a 
knife  with  two  blades,  and  he  had  the  big  blade  open,  which 
was  about  as  long  as  my  finger;  then  when  he  came  in  he 
wanted  to  go  off  again,  and  said  it  was  not  me;  it  was  not 
Bi-ckey  in  the  house.  We  wanted  him  to  lie  down — to  go  to 
bed.  We  could  not,  at  first,  get  him  to  do  so.  He  said  he 
wanted  to  go  home;  he  started  up  and  looked  at  the  bed, 
and  said,  this  is  not  my  bed — I  am  not  going  in  that  bed ; 
so  at  last  we  got  him  to  lay  down,  and  after  he  was  in,  he 
wanted  me  to  go  to  bed ;  I  told  him  I  could  not,  I  had  some 
work  to  do.  I  did  not  want  to  leave  him  alone  there ;  I 
stayed  with  him  until  between  three  or  four  o'clock,  and  he 


FEBRUARY  TERM,  1858.  275 


Garrison  v.  Executors  of  Garrison. 


never  closed  his  eyes  in  that  time.  A  little  before  the  time 
of  which  I  have  been  speaking  it  seemed  as  if  he  was  bewil- 
dered in  his  head ;  he  laid  down,  and  asked  me  if  I  had  any 
eggs  in  the  house ;  I  told  him  I  had,  and  he  told  me  to  get 
one,  and  told  me  to  crack  it  in  a  glass ;  I  cracked  it  in  the 
glass,  and  gave  it  to  him,  and  he  drank  it  up.  He  then  said, 
give  me  another  one;  and  I  gave  him  another  one,  and  he 
took  it ;  he  then  asked  for  another  one,  which  was  the  third ; 
he  took  that,  and  asked  for  the  fourth,  and  took  that;  he 
asked  for  the  fifth  one — I  gave  him  the  fifth  one,  and  he  took 
that ;  he  asked  for  the  sixth,  but  did  not  get  it.  John  Bar- 
tholf  was  there,  and  said,  brother  now  stop,  you  have  got 
enough.  He  seemed  as  if  he  was  bewildered  in  his  head. 
The  first  day  of  March  last  he  and  I  had  been  to  Peter 
Bush's.  I  did  not  hear  of  anything  until  he  stepped  out  of 
the  sleigh  on  his  return.  He  said  his  head  felt  so  queer  he 
wanted  me  to  help  him  in  the  bed  as  soon  as  I  could,  for  it 
seemed  as  though  the  house  went  all  around  with  him,  he 
said;  1  got  off  his  coat  and  boots — that  was  all  I  could  get 
off.  He  wanted  to  lay  down  so,  and  I  was  chiefly  all  night 
up  with  him.  He  seemed  very  much  bewildered  in  his  head, 
and  was  talking  about  everything;  he  was  not  drunk  that 
night." 

We  have  here  detailed  by  the  witness  all  she  ever  heard 
him  say,  or  saw  him  do,  during  the  period  of  the  last  four 
years  of  his  life,  which  was  any  evidence  of  unsoundness  of 
mind.  At  most,  it  proves  only  that  there  were  three  nights 
during  the  last  four  years  of  his  life  when  he  was  out  of  his 
mind.  The  fact  of  the  short  duration  of  these  attacks,  not 
lasting  even  until  the  following  morning,  proves  beyond  a 
doubt  the  general  soundness  of  tiie  testator's  mind.  But  a 
witness,  John  Bartholf  explains  these  circumstances  detailed 
by  Rebecca  Garrison,  which  show  they  were  only  temporary, 
and  were  no  evidence  of  a  permanent  unsoundness  of  mind. 
It  was  at  his  house  the  testator  was  in  February,  as  the 
former  witness  alluded  to.  He  says  he  remembers  the  time; 
that  testator  had  drank  a  little  too  freely;  that  he  had  a 


276  PREROGATIVE  COURT. 

'Garrison  v.  Executors  of  Garrison. 

little  too  much  when  lie  came  there.  This,  then,  was  nothing 
more  than  a  fit  of  drunkenness,  and  not  a  fit  of  insanity. 
This  witness  was  present,  too,  at  the  time  of  the  testator's 
taking  so  many  eggs.  He  tells  us  that  the  eggs  were  mixed 
with  metheglin,  and  it  is  not  surprising  that  six  drinks  in 
succession,  without  any  interval  except  of  time  sufficient  to 
prepare  the  drams,  should  produce  a  temporary  aberration 
of  mind  and  prostration  of  body.  There  were  several  other 
witnesses  examined  for  the  caveators,  but  thoy  refer  to  no 
facts  not  already  alluded  to  as  having  been  detailed  by  other 
witnesses.  Now  it  is  quite  impossible  that  the  testator,  dur- 
ing the  last  years  of  life,  should  have  been  so  feeble  in  mind 
and  body  as  to  render  him  incapable  of  transacting  business 
and  unfit  to  dispose  of  his  property,  and  yet  Rebecca  Garri- 
son, with  him  almost  every  hour  of  those  years,  should  not 
be  able  to  mention  any  other  facts  from  which  such  inca- 
pacity could  be  inferred.  I  do  not  refer  to  any  other  wit- 
nesses of  the  caveators,  because  they  mention  no  other  facts 
than  are  detailed  in  the  testimony  already  examined. 

It  is  very  evident  that  there  is  nothing  in  the  testimony, 
upon  which  the  witnesses  found  their  opinions  of  the  inca- 
pacity of  the  testator,  which  should  induce  the  court  to  hesi- 
tate in  admitting  the  will  to  probate. 

It  is  shown  that  the  testator  indulged  to  excess  in  the  use 
of  ardent  spirits ;  that  he  was  an  habitual  drunkard;  that 
his  body  wasted  away  by  degrees  under  the  effect  of  this  in- 
dulgence, and  that  it  was  the  cause  of  his  death.  His  mind 
sympathized  with  his  body,  and  although  excessive  intoxica- 
tion did  not  deprive  him  of  the  use  of  his  understanding  and 
reason,  it  greatly  impaired  them,  and  at  times  rendered  him 
incapable  of  transacting  any  business.  It  is  further  insisted, 
that  though  it  may  be  true  that  the  deceased's  general  state 
of  mind  did  not  render  him  incompetent  to  make  a  will,  yet 
that,  at  and  about  the  time  the  will  was  executed,  his  mind 
was  so  debilitated,  in  consequence  of  the  use  of  ardent  spirits 
and  his  bodily  infirmities,  that  he  had  not  at  that  time  suffi- 
cient reason  and  understanding  to  perform  so  important  an 


FEBRUARY  TERM,  1858.  277 


Garrison  v.  Executors  of  Garrison. 


act  as  that  of  dictating  and  executing  his  last  will  and  testa- 
ment. 

Abram  Garrison,  the  first  subscribing  witness,  lived  within 
two  hundred  yards  of  him,  and  had  always  been  acquainted 
with  him.  He  says  that,  during  the  last  three  months  of 
testator's  life,  there  were  times  when  he  appeared  as  rational 
as  ever  he  was,  and  then  there  were  times  when  he  did  not 
appear-fit  to  do  business;  that  on  the  day  the  will  was  exe- 
cuted, he  found  him,  as  he  expected  to  find  him,  in  a  weak 
condition  ;  that  he  was  standing  and  walking,  was  very  weak ; 
he  did  not  speak,  but  only  nodded  assent  to  the  questions 
asked ;  he  appeared  to  know  and  understand  what  was  going 
on  and  what  he  was  doing.  He  says  the  will  was  executed 
in  the  middle  of  the  day,  and  he  don't  think  testator  had  been 
drinking  any  that  day. 

James  Bartliol/,  another  subscribing  witness,  had  knoAvn 
testator  about  eighteen  years.  He  says  he  conversed  with 
him,  at  the  time,  about  having  some  surveying  done  for  one 
Carter,  and  testator  remarked  there  were  so  many  leaves  on 
the  trees  he  did  not  see  how  the  line  could  be  run,  and  he 
was  not  able  to  go  himself  and  show  the  corners.  He  offered 
the  witnesses  something  to  drink ;  he  got  the  bottle,  set  it 
down,  and  told  them  to  drink ;  he  either  called  or  sent  for 
water;  he  did  not  drink  with  them ;  he  said  he  did  not  drink 
any  then ;  he  said  he  thought  he  had  not  tasted  any  in  two 
weeks.  The  witness  says :  "  he  seemed  to  me,  from  his  con- 
versation and  actions,  to  be  in  his  usual  mind  and  faculties 
as  I  had  before  seen  and  known  him  ;  from  anything  I  saw 
or  heard  then,  at  that  time,  and  from  what  I  saw  of  testator 
before,  I  did  not  have  any  doubt,  at  that  time,  but  that  his 
mind  was  right,  and  that  he  was  competent  to  make  a  will." 

Let  us  now  see  what  transpired  in  reference  to  the  execu- 
tion of  the  will,  and  look  at  the  conduct  and  actions  of  the 
testator  about  and  immediately  before  and  after  its  execu- 
tion, for  the  purpose  not  only  of  ascertaining  tlie  state  of 
mind  of  the  testator,  but  also  of  seeing  whether  there  is 
anything  in  the  second  proposition  of  the  caveators  that,  in 


278  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

consequence  of  some  mistake,  fraud,  or  accident,  the  contents 
of  the  writing  are  not  such  as  the  decedent  intended  them. 

On  the  day  before  the  execution  of  the  will  the  testator 
was  very  ill,  and  evidently  felt  that  his  life  was  fast  drawing 
to  its  close.  Without  the  dictation  or  suggestion  of  any  one, 
on  the  afternoon  of  that  day,  he  sent  for  Henry  I.  Speer,  who 
was  the  draftsman  of  the  will.  The  next  morning  he  com- 
plained of  his  head,  and  said  to  Rebecca  Garrison,  his  house- 
keeper, that  he  was  too  confused  in  his  head  to  do  what  he 
had  to  do  on  that  day.  This  shows  that  he  remembered  the 
day's  work  he  had  marked  out  for  himself,  and  an  anxiety 
that  it  should  l>e  }>crformed ;  it  shows  his  retention  of  mem- 
ory, and  that  his  mind  was  occupied  with  the  subject  of  the 
final  disposition  of  his  property.  There  is  no  evidence  that 
he  took  any  stimulating  drink  that  morning,  and  we  have 
his  own  declaration  to  one  of  the  witnesses  that  he  did  not. 
He  told  Mrs.  Garrison,  on  that  morning,  that  he  had  sent  for 
Mr.  Speer  to  write  his  will,  although  he  had  not  made  known 
the  fact  the  day  before,  when  Speer  was  sent  for.  There 
vras  no  secrecy  about  the  transaction.  Speer  came  after 
breakfast.  The  will  was  executed  about  noon.  Speer  and  a 
stranger  dined  there  that  day,  and  after  dinner  the  three 
walked  out  on  the  farm  together.  A  Mr.  Banta  came  there 
to  get  a  cider  barrel,  and  the  testator  gave  directions  to  his 
black  man  John  where  to  find  the  barrel  in  the  cellar,  and 
cautioned  him  not  to  take  one  that  was  there  marked  with 
Van  Dolson's  name  on  it,  and  Mrs.  Garrison  says  .she  did  not 
see  him  do,  or  hear  him  say  anything  that  day  to  make  her 
think  he  was  out  of  his  head,  except  his  remark,  in  the 
morning,  that  his  head  was  confused.  The  evidence  is  very 
satisfactory  that,  on  that  day,  he  was  entirely  free  from  the 
effect  of  intoxicating  drink,  and  that  there  was  nothing 
said  or  done  by  him,  on  that  day,  to  indicate  that  he  did 
not  enjoy,  at  that  time,  his  ordinary  strength  and  health 
of  mind,  memory,  and  understanding.  When  the  will  was 
executed,  it  was  locked  up  in  the  bureau  drawer,  and  the 
testator  took  the  key.  The  next  moaning  he  gave  Mrs.  Gar- 


FEBRUARY  TERM,  1858.  279 


Garrison  v.  Executors  of  Garrison. 


rison  tlie  key,  and  told  her  to  get  the  paper  Speer  had 
written  the  day  before ;  he  told  her  it  was  on  the  top  of  a 
little  chest;  the  paper  was  handed  to  him,  and  he  asked  for 
his  specs;  Mrs.  Garrison  then  left  him,  after  telling  him,  if 
he  wanted  anything,  to  rap  with  his  cane  on  the  floor;  he 
sat  there  nearly  three  hours,  as  the  witness  states;  he 
knocked  on  the  floor;  Mrs.  Garrison  went  up,  and  asked 
Avhat  he  wanted ;  he  then  handed  her  the  paper,  and  told  her 
to  put  it  away;  she  did  so.  Mrs.  Garrison  says  she  then 
asked  "  if  it  was  wrote  as  he  wanted  it,  and  he  said  no,  he 
could  not  make  out  one  half  of  it,  and  what  he  could  make 
out  of  it  was  not  as  he  wanted  it."  The  next  day  he  wanted 
the  will  again,  and  Mrs.  Garrison  got  it  for  him,  and  he  ex- 
amined it.  She  says  she  asked  him  if  he  was  satisfied  with  it, 
and  he  said  no,  he  was  not — he  could  not  make  out  one  half 
of  it  to  read  it.  The  will  was  then  put  in  the  drawer,  which 
was  locked,  and  he  put  the  key  in  his  pocket.  About  a  fort- 
night after  this  he  sent  again  for  Speer.  He  told  Mrs.  Garri- 
son he  wanted  Speer  to  come  and  take  care  of  it.  Speer  came 
there,  and  he  and  the  testator  were  alone  together.  He 
dined  there,  and  left  in  the  middle  of  the  afternoon.  The 
witness,  Mrs.  Garrison,  says  they  got  the  will,  and  sealed  it 
up,  and  Speer  took  it  home  with  him.  Although  the  testa- 
tor had  before  said  that  the  will  was  not  as  he  wanted  it, 
there  is  no  evidence  that,  after  the  will  was  sealed  up  and  de- 
livered to  Speer,  he  ever  made  any  complaint  that  it  was  not 
as  he  wished  it. 

This  is  certainly  very  strong  evidence  to  show  that  the 
deceased  executed  this  will  with  intelligence,  and  that  the 
disposition  of  his  property  was  made  by  this  instrument  as 
he  desired  it,  without  his  being  influenced  or  dictated  to  by 
any  one.  To  corroborate  this  evidence  of  capacity,  I  will 
refer  to  a  few  only  of  very  many  particulars  stated  by  the 
witnesses. 

About  the  first  of  April  previous  to  his  death,  James  B. 
Beam,  a  witness  of  the  caveators,  borrowed  $500  of  him. 
Testator  told  him  that  on  the  first  of  May  he  could  let  him 


280  PREROGATIVE  COURT. 


Garrison  v.  Executors  of  Garrison. 


have  al!  the  money.  He  counted  out  $400,  some  in  gold 
and  some  in  paper,  and  gave  Beam  a  note  of  $100,  which  he 
held  against  some  individual.  Beam  took  the  money  and 
note,  and  gave  him  his  own  note  for  it  for  $500.  The  note 
was  endorsed  by  Mr.  Beam's  father,  and  testator  said  it  was 
good,  as  in  fact  it  was.  He  transacted  this  business  without 
any  one's  assistance. 

On  the  sixth  of  June  previous  to  his  death,  he  executed  a 
deed  for  some  land  to  Aaron  G.  Garrison,  another  witness  of 
the  cavcators.  Some  fifteen  months  before,  he  had  executed 
a  deed  for  the  same  property  to  the  father  of  Mr.  Garrison, 
and  held  his  note  for  it.  The  deed  had  not  been  recorded, 
and  the  old  deed  was  cancelled,  that  a  new  one  misjht  be 

1  O 

given  to  the  son.  Testator  held-  the  father's  note,  upon 
which  interest  had  been  paid.  This  note  was  delivered  up, 
and  a  ne\v  one  was  given  in  place  of  it.  This  business  was 
transacted  by  testator  without  any  assistance  and  without  his 
exhibiting  any  want  of  capacity. 

On  the  eighth  of  the  same  month,  Lewis  White  purchased 
of  testator  a  yoke  of  oxen,  a  wagon,  coal-box,  and  a  sled. 
He  paid  $50  in  cash,  and  gave  his  due-bill  for  $80,  which 
was  the  balance.  Mr.  White  says :  "  He  went  out  with  me 
to  the  barn,  and  showed  me  everything  I  bought  of  him  ;  he 
fixed  the  price  himself;  there  was  quite  a  good  deal  of  con- 
versation bet \veen  us  respecting  this  purchase;  he  wanted  to 
get  a  little  more  out  of  me  for  the  things,  and  we  finally 
agreed  upon  the  price  above  expressed.  At  the  time,  I  saw 
no  difference  in  his  mind  from  wlmt  he  had  formerly  been 
during  my  previous  acquaintance  with  him  ;  he  then  appeared 
in  mind  as  I  had  always  known  him.  After  the  eighth  of 
June,  I  bought  of  testator  some  hay,  corn,  potatoes,  butter, 
flour,  and  other  small  articles,  between  the  eighth  of  June 
last,  and  until  within  a  day  or  two  of  his  death.  In  all 
these  business  transactions  I  saw  no  want  of  mind  or  capacity 
to  do  business ;  he  was  as  sharp  to  make  a  bargain  the  last 
transaction  as  he  was  at  the  first.  A  couple  of  weeks  after 
the  due-bill  became  due,  which  was  the  Wednesday  previous 


FEBRUARY  TERM,  1858.  281 


Garrison  v.  Executors  of  Garrison. 


to  his  death,  I  went  to  testator's  house  to  pay  the  due-bill ; 
at  the  time  it  became  due  I  was  sick,  and  could  not  get  out 
of  my  house.  On  the  Wednesday  previous  to  testator's 
death,  when  I  paid  the  due-bill,  I  found  him  pretty  sick,  but 
his  mind  was  all  right ;  he  knew  me  and  gave  me  his  hand 
at  the  bedside ;  I  asked  him  how  he  did,  and  told  him  I  had 
come  to  pay  him  the  due-bill  he  held  against  me  ;  he  said  it 
was  all  right.  I  owed  him,  at  the  same  time,  a  good  deal 
for  articles  my  hands  had  got  of  him  while  I  was  sick, 
amounting  to  some  $55.  Before  that  I  did  not  know  how 
much  I  owed  him  for  these  things ;  after  I  paid  the  due-bill, 
I  asked  him  how  much  I  owed  him  for  them ;  he  said  it  was 
all  down  in  his  memorandum  book,  as  he  had  kept  an  account 
of  it;  he  told  the  lady  that  kept  the  house  for  him,  whom  I 
had  heard  called  Beckey  Garrison,  to  go  and  get  the  book  ; 
after  he  had  told  her  where  she  would  find  it,  she  went  and 
got  the  book ;  he  spoke,  and  told  me  to  look  over  and  see  if 
it  was  right  as  he  had  put  it  down,  and  if  I  found  anything 
wrong  he  would  correct  it ;  I  found  everything  right  except 
the  hay,  for  which  I  thought  he  had  charged  a  little  too 
much ;  he  had  charged  me  $15  per  ton,  and  I  could  buy  hay 
elsewhere  for  $10  per  ton  as  good  as  his  ;  I  told  him  so  ;  he 
said  I  must  put  it  down  at  $10,  and  deduct  the  difference 
from  the  bill ;  I  stayed  that  day  until  three  or  four  o'clock, 
and  then  went  home.  The  money  I  owed  him  I  paid  to  him 
myself;  he  sat  partially  up  in  his  bed,  and  he  looked  over  it 
while  I  counted  it  over  to  him  two  or  three  times,  and  he 
appeared  satisfied ;  the  money  was  in  two  dollar  bills ;  he 
handed  the  money  to  the  lady  who  waited  on  him,  and  told 
her  to  put  it  in  the  box  where  she  had  got  the  note  from, 
which  she  did." 

Jacob  Gould  went  to  work  for  testator,  on 'his  farm,  on  the 
twenty-eighth  of  June,  which  was  two  days  after  the  execu- 
tion of  the  will,  and  worked  for  him  till  he  died.  The  next 
week  after  Gould  went  there,  testator  went  out  in  the  field 
and  showed  him  which  piece  of  grass  he  should  cut  first,  and 
how  he  should  cut  it.  He  gave  directions  what  work  was  to 


282  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

be  done  from  day  to  day,  and  in  the  evening  Gould  would 
rc[K)rt  to  him  what  work  he  had  done.  He  says  he  never 
saw  him  unfit  to  do  business,  except  the  last  day  of  his  life. 
On  the  fourth  of  July  he  settled  with  Gould. 

The  last  of  May  he  called  upon  a  neighbor  to  go  with  him 
to  New  York  to  purchase  fish  ;  they  went  together  to  New 
York,  and  testator  went  to  his  cousin's,  in  Brooklyn,  and 
stayed  the  night.  He  engaged  the  fish  to  be  delivered  in 
June,  between  the  tenth  and  the  fifteenth.  On  the  sixteenth 
or  eighteenth  of  June  he  went  to  his  neighbor,  who  had  been 
with  him  to  New  York,  to  see  why  the  fish  had  not  come. 
This  neighbor  says  he  transacted  his  own  business,  and  that 
he  saw  no  difference  in  him  from  former  years,  except  that  he 
had  a  severe  cough. 

In  April,  testator  sold  a  farm  for  $5400.  He  entered  into 
a  written  agreement,  by  which  he  was  to  convey  the  farm  in 
consideration  of  $500  in  cash,  and  a  bond  and  mortgage  for 
the  balance.  On  the  nineteenth  of  May  the  deed  was  deliv- 
ered and  the  bargain  consummated. 

On  the  third  of  July,  testator  entered  into  negotiations  with 
Mr.  Waters  for  the  sale  of  another  farm :  he  walked  out  upon 
the  farm,  and  named  his  price  at  $5000 ;  an  offer  was  made 
of  $4000  ;  they  parted  to  meet  for  further  negotiation  next 
morning;  they  met,  and  a  written  agreement  was  signed  by 
both  parties,  which  was  a  sale  of  the  farm  at  $4000,  with  the 
reservation  of  that  year's  crops,  and  testator  to  retain  posses- 
sion of  the  farm  until  the  following  February.  On  the  fif- 
teenth of  July  the  deed  was  executed,  and  a  few  days  after- 
ward  the  papers  were  exchanged.  All  these  negotiations  were 
commenced  and  carried  through,  on  the  part  of  the  testator, 
without  the  aid  or  advice  of  any  one  on  his  behalf;  that  the 
sales  were  judicious,  as  to  price  and  every  other  particular, 
have  not  been  questioned  by  any  one. 

Elias  Tolly  and  Albert  Brown  were  inmates  of  testator's 
family  from  the  sixteenth  of  May,  immediately  preceding 
his  death,  until  the  twenty-first  of  June,  which  was  five  days 
previous  to  the  execution  of  the  will.  They  saw  him  daily, 


FEBRUARY  TERM,  1858.  283 

Garrison  v.  Executors  of  Garrison. 

and  ate  at  the  same  table  with  him,  and  they  never  observed 
anything  in  his  conversation  or  behavior  to  indicate  that  he 
did  not  enjoy  the  full  possession  of  all  his  mental  faculties. 

But  the  caveators,  as  evidence  of  the  incapacity  of  the 
testator,  appeal  to  the  contents  of  the  will  itself,  and  allege 
that  they  are^uch  as  to  exclude  the  supposition  of  the  testa- 
tor's capacity.  The  contents  of  the  will  itself,  coupled  with 
the  situation  of  the  testator  and  the  circumstances  under 
which  ic  was  made,  afford  important  evidence  as  to  his  ca- 
pacity. (Hall  v.  I  Fan-en,  ,9  Ves.  jun.  610.)  And  it  seems 
that,  from  such  evidence  alone,  where  the  terms  of  the  sup- 
posed will  are  such  as  tend  to  exclude  the  supposition  of  the 
maker's  sanity,  the  jury  may  decide  against  the  validity  of  a 
will.  (Burr  v.  Daval,  8  Mod.  59.)  But  it  is  clear,  on  the 
other  hand,  that  it  is  not  sufficient  to  show  that  the  disposi- 
tions of  the  will  are  imprudent  and  unaccountable.  (3  Stark. 
Ev.  1708.)  No  matter  what  the  dispositions  of  the  will  may 
be — no  matter  how  imprudent,  unreasonable,  or  unaccount- 
able they  are — no  presumptions  of  law  can  arise  from  them 
against  the  validity  of  the  will,  but  mere  natural  presump- 
tions from  which  a  court  or  jury  may  draw  the  inference  of 
the  incapacity  of  the  testator.  In  this  case  it  is  said  that 
the  dispositions  of  the  will  are  not  only  imprudent,  unnatu- 
ral, and  unreasonable,  but  that  they  are  contradictory  to  the 
known  intentions  of  the  testator  and  to  his  repeated  declara- 
tions regarding  the  final  disposition  of  his  property. 

The  nearest  relative  of  testator  living  at  his  death  was 
his  brother,  Garret  Garrison,  and  all  that  was  left  him  by 
the  will  is  the  wearing  apparel,  which  is  directed  to  be  di- 
vided between  him  and  testator's  black  man  John,  share  and 
share  alike.  To  one  of  the  sons  of  Garret  Garrison  is  given 
five  hundred  dollars,  and  to  another  son  two  hundred  dollars. 
The  bulk  of  the  property  is  given  to  the  Board  family;  three 
thousand  dollars  to  Garret  Hopper  Van  Horn,  who  married 
Mary  Ellen  Board,  natural  daughter  of  testator's  wife  before 
their  intermarriage ;  five  thousand  to  Peter  G.  Board,  and 
other  legacies  to  other  members  of -the  family.  Eight  hun- 


284  PREROGATIVE  COURT. 

Garrison  v.  Executors  of  Garrison. 

dred  dollars  is  left  to  Rebecca  Garrison,  a  sister  of  his  de- 
ceased wife,  and  two  hundred  dollars  to  Henry  I.  Speer,  who 
drew  his  will ;  five  hundred  dollars  he  directed  to  be  put  at 
interest  for  the  benefit  of  his  black  man  John. 

When  the  deceased  married  his  wife  she  had  a  daughter, 
who  was  a  natural  child.  Testator  himself  had,  no  children 
by  his  wife.  After  their  marriage,  this  daughter  married 
John  F.  Board,  and  the  descendants  of  this  daughter  are  the 
principal  legatees  of  the  will.  It  is  shown,  by  several  wit- 
nasses,  that  the  testator  repeatedly  declared  that  the  Boards 
had  received  enough  of  his  property,  and  that  they  should 
never  get  any  more  of  it,  if  he  had  his  senses.  To  over- 
come any  presumption  which  might  arise  from  these  circum- 
stances, it  is  shown  that  the  deceased  ahvays  manifested  the 
greatest  attachment  and  affection  for  his  wife,  and  that  it 
was  the  great  grief  caused  by  her  death  that  occasioned  his 
excessive  intemperance,  and  the  peculiarities  which  he  ex^ 
hibited  manifesting  any  failure  or  aberration  of  mind.  The 
attachment  he  ahvays  manifested  for  the  Boards,  notwith- 
standing his  many  peevish  complaints  against  them,  is  also 
strongly  relied  upon.  The  daughter  of  Mrs.  Garrison  lived 
with  a  sister  of  her  mother  until  that  sister's  death;  the 
daughter  was  then  thirteen  or  fourteen  years  of  age.  She 
then  went  to  live  with  the  testator,  and  lived  with  him  until 
her  marriage  with  John  F.  Board.  Peter  G.  Board,  her  son, 
lived  with  testator  until  his  wife's  death.  There  was  never 
any  difficulty  between  the  testator  and  any  of  the  Board 
family,  and  his  complaints  about  their  not  being  attentive 
enough  to  him  were  ahvays  made  in  a  peevish  manner,  and 
were  not  so  much  a  manifestation  of  any  hostility  to  them, 
as  evidences  of  his  mortification  at  their  not  reciprocating 
his  attachment  for  them.  What  is  said  by  Rebecca  Garrison 
shows  the  true  state  of  his  feelings  towards  them.  She  says 
"  the  old  man  was  glad  when  the  Board  family,  or  any  of 
them,  came  there;  when  they  did  not  come,  he  complained 
of  it,  and  said  they  didn't  care  about  him."  His  confidence 
in  Garret  Hopper  Van  Horn  continued  up  to  the  time  of  his 


FEBRUARY  TERM,  1858.  285 

Garrison  v.  Executors  of  Garrison. 

death.  After  the  execution  of  the  will,  and  about  ten  days 
before  his  death,  when  he  had  confidential  business  to  trans- 
act, he  sent  for  Van  Horn,  and  sent  him  to  Patcrson  to  ex- 
change the  papers  in  reference  to  the  sale  of  his  farm,  and  to 
receive  the  money  which  was  to  be  paid.  The  remark  he 
made  to  Mr.  Goetehius,  as  late  as  May  previous  to  his  death, 
is  calculated  to  mitigate  the  unfavorable  impression  of  his 
declarations,  that  the  Boards  shoulc^  not  have  any  more  of 
liis  properly.  He  said,  to  Mr.  Goetehius,  he  had  blood  re- 
lations who  appeared  very  friendly,  but  he  knew  what  it  was 
for,  it  was  only  for  his  property,  but  they  wouldn't  get  much 
of  it;  he  said  that  he  had  no  children  of  his  own,  but  that 
he  had  children  he  considered  his  own,  and  he  would  do  well 
by  them.  He  alluded  doubtless  to  the  Boards  as  the  children 
he  had. 

There  is  a  circumstance  mentioned  by  Rebecca  Garrison, 
which  shows  clearly  that  the  testator  knew  this  will  con~ 
tained  just  what  it  in  fact  does,  and  that  the  testator,  some- 
days  after  its  execution,  remembered  the  fact  well  that  ib 
gave  the  principal  part  of  his  property  to  Van  Horn  and  the- 
Boards,  and  that  the  contents  of  the  will  were  what  he  in- 
tended they  should  be.  In  July,  after  he  made  his  will,  he 
sent  for  Peter  Garrison,  one  of  his  nephews,  a  son  of  his, 
brother  Garret.  "When  Peter  came,  he  told  Rebecca  Garri- 
son to  get  some  silver  spoons  he  had  in  the  house.  She  says, 
"he  raised  up  in  bed,  and  took  the  spoons  out  of  my  hand, 
and  said,  here  Peter,  these  spoons  I'll  give  to  you ;  and  then 
lie  said  he  did  not  want  his  spoons  he  got  from  his  father  to 
go  among  strangers  ;  so  he  said,  if  they  went  unto  the  Boards 
and  Van  Horns  they  would  be  sold  for  old  silver;  that  what 
he  got  from  his  father  should  stay  among  the  Garrisons." 
Here  was  an  intelligent  recognition  of  the  contents  of  the  will. 
The  Boards  and  Van  Horns  could  not  get  them  .except  under 
the  will  he  had  made.  They  were  of  no  kin  to  him,  and 
tuey  could  not  possibly  get  the  spoons  or  any  other  of  his 
property  but  by  will. 

After  giving  this  case  the  best  consideration  in  my  power,, 

VOL.  n.  8 


286 


PREROGATIVE  COURT. 


Tomlinson  ».  Smallwood. 


my  conclusion  is,  that  the  Orphans  Court  of  the  county  of 
Bergen  were  right  in  making  the  order  to  admit  the  paper 
propounded  as  the  last  will  aiid  testament  of  Peter  A.  Gar- 
rison to  probate. 


EPHRAIM  TOMLIXSOX,  appellant,  and  JOHN  C.  SMALLWOOD 
and  others,  respondents. 

An  assignee,  under  the  act  entitled  "  an  act  to  secure  to  creditors  an  equal 
and  just  division  of  the  estates  of  debtors  who  convey  to  assignees  for 
the  benefit  of  creditors,"  is  not  chargeable  with  interest  on  the  dividend 
in  his  hands  due  to  a  creditor,  although  he  may  have  delayed  settling 
his  final  account  in  the  Orphans  Court  for  a  much  longer  time  than  is 
allowed  by  tlie  statute  for  that  purpose,  unless  the  claim  of  the  creditor 
to  his  dividend  was  in  some  way  affected  by  the  noncompliance  of  the 
assignee  with  the  requirements  of  the  statute. 

The  statute  makes  it  the  duty  of  the  assignee  to  declare  the  dividends,  and 
make  distribution  without  any  order  or  decree  of  the  court  for  that  pur- 
pose. The  dividends  become  payable  as  soon  as  there  is  money  in  hand 
for  the  purpose,  without  any  control  or  action  of  the  court.  The  statute 
requires  no  notice  to  be  given  to  the  creditor — it  is  his  duty  to  make  ap- 
plication to  the  assignee. 

The  filing  of  a  final  account  is  not  intended  as  notice  to  the  creditor  that 
the  dividends  are  ready. 

If  the  creditor  was  not  delayed  or  hindered  in  the  receipt  of  his  dividend 
by  the  delay  of  the  assignee  in  settling  his  final  account,  but  failed  to 
receive  his  pay  only  because  he  neglected  to  call  on  the  assignee  and  de- 
mand it,  he  is  not  entitled  to  interest. 

It  would  be  most  bnrthensome  and  unjust  to  lay  down  the  rule,  that  it  is 
the  duty  of  an  assignee  to  go  to  the  creditors,  and  tender  them  their 
money,  and  that  on  failure  of  his  doing  so  the  assignee  should  be  charge- 
able with  interest  on  the  money  in  his  hands. 


This  case  came  before  the  Ordinary  on  an  appeal  from  the 
Orphans  Court  of  Gloucester  county.  The  facts  are  suffi- 
ciently stated  in  the  opinion  of  the  Ordinary. 

Mr.  Dudley,  for  appellant,  cited  Nix.  Diy.  28,  §  2 ;  2  Kent 
230;  2  Williams  on  Executors  1567  (note  1);  Gray  v.  Thomp- 
son, 1  J.  C.  R.  82 ;  Burrdl  on  Assignments  539. 


OCTOBER  TERM,  1858.  287 

Tomlinson  r.  Smallwood. 

W.  L.  Dayton,  Attorney-General,  contra,  cited  Ealdn  v. 
Catiett,  I  Harr.  103 ;  Lake  v.  Park,  4  Ib.  108. 

THE  ORDINARY.  On  the  twenty-first  of  February,  1852, 
Benjamin  Brown  made  an  assignment,  under  the  statute,  for 
the  benefit  of  his  creditors,  to  the  respondents,  John  C. 
Smallwood  and  Ephrairn  Tomliuson.  On  the  twenty-second 
of  May,  of  the  same  year,  the  assignees,  according  to  the 
requirement  of  the  statute,  filed  with  the  clerk  of  Common 
Pleas  of  the  county  of  Gloucester  a  list  of  the  debtor's  credi- 
tors, which  exhibited  debts  amounting  to  $8104.22.  In  the 
term  of  April,  1855,  of  the  Orphans  Court  of  the  county  of 
Gloucester,  a  rule  was  taken  upon  the  assignees  to  file  their 
accounts,  and  make  a  final  settlement  of  the  same,  on  or  be- 
fore the  next  term  of  the  court.  In  September  term,  1855, 
the  Orphans  Court  made  an  order  that  the  assignees  should 
file  their  accounts  twenty  days  previous  to  the  then  next  De- 
cember term  of  the  court.  On  the  sixth  of  December,  and 
during  the  term  of  the  court,  the  account  was  filed. 

It  appears,  from  the  account,  that  there  was  in  the  hands 
of  the  assignees,  to  be  distributed  among  the  creditors, 
$2225.48.  They  produced  vouchers  showing  that  all  tha 
creditors  had  been  paid  their  dividends  except  Ephraini 
Tomlinson,  whose  dividend  amounted,  as  appears  by  the  ac- 
count, to  the  sum  of  $266.22. 

On  the  twenty-seventh  of  December,  1855,  the  appellant 
filed  exceptions  to  the  account.  By  these  exceptions,  he 
claims  interest  on  his  dividend  after  one  year  from  the  date 
of  the  assignment.  On  the  argument  of  the  exceptions  be- 
fore the  Orphans  Court,  the  judges  being  equally  divided,  the 
exceptions  were  not  sustained,  and  an  order  was  made  accord- 
ingly. From  this  order  the  appeal  is  taken. 

It  would  be  most  burthensome  and  unjust  to  lay  down  the 
rule,  that  it  is  the  duty  of  an  assignee  to  go  to  the  creditors 
and  tender  them  their  money,  and  that  on  failure  of  his  doing 
so,  the  assignee  should  be  chargeable  with  interest  on  the 
money  in  his  hands.  This  is  not  contended  for  on  behalf  of 


288  PREROGATIVE  COURT. 

.  Tomlinson  t.  Sraalhvood. 

the  appellant.  Cut  it  is  insisted  that,  inasmuch  as  the  statute 
requires  that  the  assignees  shall  render  a  final  account  to  the 
Orphans  Court  within  a  certain  period,  and  they  not  having 
complied  with  such  requirement,  that  neglect  imposes  upon 
them  the  duty  of  paying  interest  on  the  money  in  their 
hands  to  which  the  creditors  were  entitled.  It  appears  to  me 
that  unless  the  claim  of  the  creditor  to  his  dividend  was  in 
some  way  affected  by  the  noncompliance  of  the  assignees 
with  the  requirement  of  the  statute  in  reference  to  exhibiting 
their  accounts,  the  court  has  no  right  to  impose,  as  a  penalty 
of  such  neglect,  that  the  creditor  shall  be  entitled  to  interest 
If  the  assignees  are  to  be  charged  with  interest  on  money  in 
their  hands,  it  is  because  they  have  not  paid  it  to  the  creditor 
promptly  at  the  time  when  by  law  he  was  legally  entitled  to 
it.  Did  the  neglect  of  the  assignees  1o  file  their  accounts 
delay  or  hinder  the  appellant  in  obtaining  his  dividend,  or 
was  it  owing  entirely  to  his  own  neglect  in  not  applying  to 
the  assignees,  that  he  did  not  receive  it  at  the  time  when  the 
other  creditors  received  theirs  ? 

The  assignment  was  recorded  in  the  clerk's  office  of  the 
county  according  to  law.  At  the  expiration  of  three  months 
after  the  date  of  the  assignment,  the  assignees  filed  with  the 
clerk  a  list  of  all  ths  creditors  of  the  debtor  who  had  applied 
to  them,  with  a  true  statement  of  their  respective  claims.  No 
exception  was  filed  to  the  claim  of  any  creditor.  The  statute 
then  imposed  the  duty  upon  the  assignees  to  proceed  and 
make,  from  time  to  time,  fair  and  equal  dividends  among  said 
creditors  of  the  assets  which  had  come  to  hand  in  proportion 
to  their  claims. 

It  will  be  observed  that  the  statute  imposes  the  duty  upon 
the  assignees  to  declare  the  dividends,  and  make  distribution 
without  any  order  or  decree  of  the  court  for  that  purpose. 
The  dividends  become  payable  to  the  creditors,  as  soon  as 
there  is  money  in  hand  for  the  purpose,  without  any  control 
or  action  of  the  court.  The  statute  requires  no  notice  to  be 
given  to  the  creditors.  It  is  their  duty  to  make  application 
to  the  assignees,  and  it  is  the  assignees'  duty  to  give  to  the 


OCTOBER  TERM,  1858.  289 


Tomlinson  v.  Smallwood. 


creditors,  upon  their  application,  such  notice  as  will  facilitate 
them  in  receiving  promptly  their  money  when  it  is  due.  In 
'any  of  these  respects  the  respondents  have  not  been  in  default. 

But  the  statute  made  it  obligatory  on  the  asignees  to  render 
a  final  account  in  the  Orphans  Court  within  a  certain  period 
named  in  the  statute.  At  the  instance  of  the  appellant,  the 
court  cited  them  to  account.  And  although  they  ought  to 
have  filed  such  account  on  or  before  the  twenty-second  of 
May,  1853,  it  was  not  filed  until  the  twenty-fourth  of  No- 
vember, 1855.  For  this  neglect,  it  is  insisted  that  the  assig- 
nees should  pay  interest  to  the  appellant  on  his  dividend.  If 
this  neglect  hindered  or  embarrassed,  or  delayed  in  any  way 
the  appellant  from  receiving  his  dividend  from  the  time  when 
it  was  due  until  he  did  receive  it,  then  his  dividend  should 
draw  interest,  but  not  otherwise.  How  is  the  fact? 

The  accounts  of  the  assignees  are  all  correct.  There  is  no 
objection  interposed  to  their  allowance  by  any  creditor.  The 
creditors  all  received  their  money  when  demand  was  made, 
and  it  was  owing  entirely  to  the  neglect  of  the  appellant  that 
he  did  not  receive  his  dividend.  It  was  ready  for  him,  but 
he  did  not  choose  to  ask  for  it.  He  has  received  no  injury — 
he  has  lost  no  interest — from  the  fact  that  the  assignees  were 
dilatory  in  filing  their  accounts.  But  he  lost  his  interest  be- 
cause of  his  own  negligence  in  not  demanding  the  principal 
that  was  due  to  him. 

It  was  said,  in  argument,  that  the  filing  of  the  final  account 
is  notice  to  the  creditors  that  their  dividends  are  ready.  The 
statute  intended  it  for  no  such  purpose,  and  I  cannot  see  that 
the  court  lias  any  right  to  put  such  a  construction  upon  it.  It 
certainly  appears  very  evident  to  me,  in  looking  at  all  the  facts 
as  they  are  presented,  that  it  is  the  appellant's  own  fault,  and 
his  only,  that  he  did  not  receive  his  dividend.  This  being  the 
case,  I  cannot  see  the  propriety  of  allowing  him  interest. 

The  decree  of  the  Orphans  Court  is  affirmed. 


290  PREROGATIVE  COURT. 


Mundy  v.  Mundy. 


MlLVDY  VS.   MUNDY. 

In  the  matter  of  the  probate  of  the  last  will  and  testament 
of  Michael  Mundy,  deceased. 

A  will  can  be  cancelled  in  no  other  way  than  by  its  being  burned,  torn,  or 
obliterated  by  the  testator  himself,  or  in  his  presence  and  by  his  direc- 
tion and  consent,  or  by  a  revocetion  in  writing,  executed  in  the  same 
manner  as  wills  are  required  to  be  executed. 

A  testator  asked  his  wife  if  she  had  brought  his  will  from  its  place  of 
deposit  according  to  his  instructions,  and  at  the  same  time  informed  her 
that  he  wished  to  burn  it  up.  The  wife  replied  that  she  had  burned  it 
up.  Held,  that  this  did  not  amount  to  a  revocation,  the  will  not  having 
been  burnt. 

Under  the  statute  of  this  state,  passed  in  1814,  it  was  requisite  that  the 
witnesses  should  be  actually  present,  and  see  the  testator  sign  the  wilL 
The  act  of  1851  makes  the  acknowledgment  of  his  signature  in  the  pres- 
ence of  the  witnesses  sufficient. 

There  is  no  argument  to  be  drawn  from  the  substitution  of  the  word  "  de- 
clared" in  the  act  of  1851,  for  the  word  "published,"  in  the  former  act. 
Whatever  would  amount  to  a  publication  would  answer  the  requirement, 
that  it  should  be  declared  to  be  the  testator's  will. 

It  is  manifest  that  the  authors  of  the  act  of  1851  did  not  intend  to  affect 
any  wills  executed  in  compliance  with  the  requirements  of  the  old  act. 

The  attestation  clause  to  a  will  is  prima  facie  evidence  of  the  facts  stated 
in  it ;  and  the  instrument  will  not  be  rejected  because  the  witnesses  fail 
to  remember  the  mode  of  its  execution. 

If  there  is  no  attestation  clause,  there  must  be  affirmative  proof  of  the 
publication  by  the  testator  and  of  the  other  requisites. 

There  must  be  some  declaration  by  the  testator  that  it  is  his  will,  and  a 
communication  by  him  to  the  witnesses  that  he  desires  them  to  attest  it 
as  such.  But  this  need  not  be  by  word :  any  act  or  sign  by  which  that 
communication  can  be  made  is  enough. 


Adrain  and  Blauvelt,  for  caveator. 
Mr.  Leupp,  for  executrix. 

THE  ORDINARY.  This  is  an  appeal  from  the  decree  of  the 
Orphans  Court  of  the  county  of  Middlesex,  refusing  probate 
to  the  will  of  Michael  Mundy,  deceased.  The  decree  of  the 
court  states,  "  that  the  paper  writing,  purporting  to  be  the 


OCTOBER  TERM,  1858.  291 

Mundy  v.  Mundy. 

last  will  and  testament  of  the  said  Michael  Mundy,  deceased, 
bearing  date  the  2d  of  April,  A.  D.  1835,  and  so  presented 
for  probate  as  aforesaid,  and  caveat  filed  against  the  same,  is 
not  proved  to  be  the  last  will  and  testament  of  the  said 
Michael  Mundy,  deceased,  and  that  letters  testamentary 
ought  not  and  do  not  issue  thereon."  There  are  no  reason? 
given  for  the  decision  of  the  court ;  but  I  presume  they  diu 
not  consider  the  proof  sufficient  as  to  the  requirements  of 
the  statute  having  been  complied  with  in  the  execution  of  the 
will. 

There  was  considerable  proof  taken  as  to  testamentary  ca- 
pacity. There  is  no  room,  however,  to  doubt  as  to  the  tes- 
tator's capacity.  Laying  out  of  view  altogether  the  rebutting 
testimony  offered  in  support  of  the  will,  the  testimony  taken 
on  this  point  on  the  part  of  the  caveator  •  does  not  cast  a  rea- 
sonable doubt  upon  the  competency  of  the  testator  to  make  a 
testamentary  disposition  of  his  property. 

There  was  some  testimony  taken  also  in  reference  to  the 
cancellation  of  the  will.  A  witness  says,  "  I  was  at  his  (tes- 
tator's) house  fifteen  years  ago,  and  Mr.  Mundy  asked  his 
wife  for  the  will,  and  she  said  it  was  at  Piscataway-town ; 
she  said,  to  Mr.  Mundy,  what  do  you  want  of  it?  he  said,  I 
want  to  burn  it  up ;  she  said,  it  is  at  Piscataway-town ;  she 
said,  when  I  go  down  there  I  will  get  it :  when  she  came 
home,  he  asked  her  if  she  had  got  the  will — she  said  no — 
what  do  you  want  of  it?  I  want  to  burn  it  up,  he  said;  she 
said,  I  have  burnt  it  up ;  that  was  about  fifteen  years  ago." 
If  implicit  confidence  could  be  placed  in  the  testimony  of 
this  witness,  it  would  not  affect  the  validity  of  the  will.  The 
will  was  not  burnt  up.  The  testator  ought  not  to  have  re- 
lied upon  the  declaration  of  his  wife.  If  he  had  seriously 
desired  to  cancel  the  will,  he  could  have  done  it  without  hav- 
ing the  will  in  his  possession.  The  will  could  be  cancelled  in 
no  other  way  than  by  its  being  burned,  cancelled,  torn,  or 
obliterated  by  the  testator  himself,  or  in  his  presence  and  by 
his  direction  and  consent,  or  by  a  revocation  in  writing, 
executed  in  the  same  manner  as  wills  are  required  to  be  exe- 


292  PREROGATIVE  COURT. 

Mundy  v.  Mundy. 

cuted.  Tliis  will  was  neither  cancelled  or  revoked  in  .the 
manner  directed  by  the  statute. 

As  to  the  execution  of  the  will,  the  testator  having  died 
subsequent  to  the  fourth  of  July,  1850,  the  will  must  have 
been  executed  in  compliance  with  the  requirements  of  the 
statute  of  March  12th,  1851,  in  order  to  admit  it  to  probate. 
There  is  no  difference,  as  to  the  attestation  and  execution  of 
a  will,  between  the  acts  of  1714  and  of  1851,  except  as  to 
the  number  of  witnesses.  The  former  act  required  three 
attesting  witnesses — the  last  act  requires  two  only.  There  is 
some  difference  in  the  language  of  the  act.  The  act  of  1714 
declares  that  the  will  shall  be  signed  and  published  by  the 
testator  in  presence  of  three  subscribing  witnesses.  The  act 
of  1851  requires  it  shall  be  signed  by  the  testator,  which 
signature  shall  be  made  by  the  testator,  or  the  making 
thereof  acknowledged  by  him,  and  such  writing  declared  to 
be  his  last  will  and  testament.  Under  the  act  of  1814,  it 
was  requisite  that  the  witnesses  should  actually  be  present 
and  see  the  testator  sign  the  will.  The  last  act  makes  the 
acknowledgment  of  his  signature  in  the  presence  of  the  wit- 
nesses sufficient.  There  is  no  argument  to  be  drawn  from 
the  substitution  of  the  word  declared  for  publixhetl,  as  was 
supposed  by  counsel.  The  last  act  requires  no  more  for- 
mality in  this  respect  than  the  former.  Whatever  would 
amount  to  a  publication  would  answer  the  requirement  that 
it  should  be  declared  to  be  the  testator's  will.  It  is  manifest 
that  the  authors  of  the  act  of  1851  did  not  intend  to  affect 
any  wills  which  should  have  been  executed  in  compliance 
with  all  the  requirements  cf  the  old  act. 

The  attestation  to  this  will  is  as  follows:  " Signed,  sealed, 
published,  pronounced,  and  declared  by  the  said  Michael 
Mundy  to  be  his  last  will  and  testament,  in  the  presence  of 
us,"  to  which  is  subscribed  the  names  of  three  witnesses. 
The  will  bears  date  more  than  twenty  years  ago.  One  of 
the  subscribing  witnesses,  who  was  the  scrivener  who  drew 
the  will,  is  dead.  Another  one,  who  was  quite  young  at  the 
time,  has  no  recollection  of  the  transaction,  but  readily  re- 


OCTOBER  TERM,  1858.  293 

Mundy  v.  Mundy. 

cognizes  her  signature.  Mrs.  Manning  has  a  distinct  recol- 
lection of  the  fact  of  her  witnessing  the  will,  but  a  very  im- 
perfect and  confused  recollection  of  the  particulars,  of  the 
transaction.  In  attempting  to  call  them  to  remembrance, 
and  to  give  them  in  detail,  she  is  led  into  some  contradic- 
tions, which  afforded  counsel  some  room  for  argument  that 
the  statute  had  not  been  complied  with.  The  will  has  the 
attesting  clause,  which,  if  true,  shows  that  all  the  require- 
ments of  the  law  were  fulfilled.  Although  the  witnesses  may 
have  forgotten  whether  they  were  all  present,  and  saw  the 
testator  sign  the  will,  or  whether  he  made  any  publication 
or  declaration  of  it,  the  instrument  ought  not  to  be  rejected 
on  account  of  such  mere  want  of  recollection.  The  attesta- 
tion clause,  with  the  signatures  of  the  witnesses,  is  prima 
facie  evidence  of  the  facts  stated  in  it.  It  may  be  overcome 
by  the  witnesses  themselves,  or  by  other  witnesses,  or  by 
facts  and  circumstances  irreconcilable  with  its  verity.  If 
there  is  no  attestation  clause  the  case  is  different.  In  one 
case  there  must  be  affirmative  proof  of  publication  and  of 
the  other  requisites ;  in  the  other,  there  must  be  affirmative 
proof  of  the  want  of  those  requirements.  Grant  v.  Grant, 
1  Sand.  Ch.  Rep.  235 ;  Remsen  v.  Brinkerhoof,  26  Wend. 
324,  339. 

The  facts  which  the  witness  distinctly  remembers  are  con- 
sistent with  the  attestation  clause.  She  recollects  distinctly 
of  the  testator,  her  husband,  and  herself  being  in  the  room, 
and  while  all  there  together,  her  husband  called  her,  and 
asked  her  to  sign  the  will  as  a  witness.  She  has  no  recol- 
lection of  testator's  saying  anything  when  he  signed  the  will. 
She  says  it  was  understood  at  the  time  that  he  signed  it  as 
his  will.  She  says  she  has  a  recollection  of  seeing  Mr. 
Mundy  sign  the  will ;  that  he  did  not  say  anything  to  her 
when  he  signed  it. 

There  seems  to  be  sufficient  proof  of  all  the  requirements 
except  as  to  his  declaring  it  his  will.  There  must  be  some 
declaration  by  the  testator  that  it  was  his  will,  and  a  com- 
munication by  him  to  the  witnesses  that  he  desires  them  to 


294  PREROGATIVE  COURT. 

Pancoast  v.  Graham. 

attest  it  as  such.  But  this  need  not  be  done  by  word — any 
act  or  sign  by  which  that  communication  can  be  made  is 
enough.  The  scrivener,  in  the  presence  of  the  testator,  says, 
this  is  the  will  of  A.  B.,  and  he  desires  you  to  witness  it — 
the  testator  standing  by — is  a  sufficient  publication  or  decla- 
ration. The  form  is  immaterial.  Bat  the  witnesses  must 
know  it  is  the  will  of  the  testator  they  are  witnessing,  and 
they  must  witness  it  at  his  request.  Mrs.  Mannlny,  at  one 
time,  says  she  thinks  her  husband  signed  the  will  be/ore  the 
testator.  If  the  fact  were  clearly  proved,  it  would  not  aifect 
the  validity  of  the  wilL  The  particular  order  of  the  several 
requisites  to  the  valid  execution  of  a  testament  is  not  at  all 
material.  Vauyhan  v.  Burford,  3  Bradford's  Rep.  78 ;  and 
in  which  case  it  is  said,  in  reference  to  the  declaration  by  the 
testator,  "  the  witnesses  may  be  said  to  have  signed  at  the 
decedent's  request ;  when  their  names  having  been  read  over 
to  him,  and  .seen  by  him,  he  signed  the  document.  The  read- 
ing aloud,  followed  by  the  act  of  signature,  constituted  a  tes- 
tamentary declaration." 

The  decree  of  the  Orphans  Court  of  the  county  of  Mid- 
dlesex must  be  reversed,  and  the  will  be  admitted  to  probate. 
Letters  may  be  taken  out  in  this  court,  or  the  proceedings 
may  be  remanded,  and  letters  taken  out  in  the  court  below. 

CITED  in  Shippen  v.  Davidson,  12  C.  E.  Gr.  400 ;  Allaire  v.  Allaire,  8 
Vroom,  325,  327  :  Ei-rick&on  v.  Fields,  3  Stew.  636. 


SAMUEL  PAXCOAST  and  JOSHUA  BULLOCK,  executors,  &c., 
appellants,  vs.  ELLEN  GRAHAM  and  others,  respondents. 

Where  a  caveat  is  filed  against  proving  a  will  by  a  person  who  claims  to 
be  attorney  in  fact  for  legatees  under  a  former  will,  who,  if  living  at  all, 
live  in  a  distant  state  of  the  Union,  and  no  power  of  attorney  is  pro- 
duced from  such  legatees — held  that  the  fair  presumption  was,  under  the 
circumstances  of  this  case,  that  no  power  of  attorney  was  in  existence, 
and  that  it  was  the  duty  of  those  opposing  this  will  on  behalf  of  such 
legatees  to  give  some  evidence  of  their  being  still  alive,  and  of  the  au- 
thority to  appear  for  them,  if  they  wish  to  attack  the  present  will  be- 
cause of  their  not  being  mentioned  in  or  provided  for  in  it. 

Tiie  evideuce  in  this  case  carefully  examined,  and  the  will  admitted  to  pro- 


OCTOBER  TERM,  1858.  295 

Pancoast  v.  Graham. 

bate  against  a  very  strong  array  of  medical  and  other  testimony  against 
the  sanity  of  the  testator. 

The  testimony  of  the  attesting  witnesses,  as  to  the  sanity  of  the  testator, 
held  to  be  strengthened  by  the  facts  that  the  will  is  a  reasonable  one  on 
the  face  of  it,  and  that  its  contents  correspond  with  the  repeated  decla- 
rations of  the  testator. 

The  consideration  is  entitled  to  some  weight,  that  by  the  will  under  con- 
sideration the  property  is  mostly  given  to  the  heirs-at-law  and  next  of 
kin  of  the  testator,  who  are  satisfied  with  the  will  as  it  stands.  The 
caveators,  if  they  claim  as  devisees  or  legatees  under  a  former  will 
should  have  propounded  it  for  probate.  Not  having  done  this,  the  pre- 
sumption is,  that  if  this  will  is  not  established,  the  decedent  died  intes- 
tate, and  such  being  the  case,  the  property  would  go  to  the  very  persons 
to  whom  it  is  given  by  the  present  will,  and  the  caveators  would  derive 
no  benefit  from  defeating  it. 


Mahlon  H.  Hutchinsan,  John  L.  Stratton,  and  W.  L.  Day- 
ton, for  appellants. 

Garrit  S.  Cannon  and  John  C.  Ten  Eyck,  for  respondents. 

THE  ORDINARY.  The  appellants,  who  are  the  executors 
named  in  a  paper  writing  which  purports  to  be  the  last  will 
of  Lewis  W.  Pancoast,  late  of  the  county  of  Burlington,  de- 
ceased, offered  the  same  for  probate  to  the  surrogate  of  that 
county.  The  respondents,  who  claim  to  be  interested  in  the 
estate  of  the  deceased  as  legatees  under  an  alleged  prior  will 
of  the  decedent,  filed  a  caveat.  A  large  number  of  witnesses 
were  sworn,  and  examined  in  favor  of  and  against  the  will, 
and  the  court  decided  against  admitting  it  to  probate.  The 
objections  urged  against  the  will  are  two — the  mental  inca- 
pacity of  the  testator,  and  that  the  will  was  procured  by  un- 
due influence.  It  was  oil  the  ground  of  incapacity  that  the 
Orphans  Court  rejected  the  will.  There  is  no  evidence  in 
the  case  to  justify  a  reasonable  suspicion  that  the  will  was 
procured  by  undue  influence.  I  shall  not  therefore  further 
notice  this  objection,  but  will  direct  my  inquiry  to  the  other 
ground  of  objection,  the  incapacity  of  the  testator. 

The  will,  upon  the  face  of  it,  is  a  reasonable  one.  There 
Is  nothing  in  the  disposition  which  the  decedent  makes  of  his 


296  PREROGATIVE  COURT. 

Pancoast  v.  Graham. 

pro]>erty  that  indicates  an  unsoundness  of  mind.  With  the 
exception  of  three  small  legacies,  lie  gives  his  property  to 
those  who  would  have  taken  it  by  law  if  he  had  died  intestate 
— his  brother  and  sister — who  are  his  only  heirs-at-luw  and 
next  of  kin. 

But  it  is  said,  that  although  the  will  bears  upon  its  face  no 
evidence  of  unsoundness  of  mind,  yet  in  fact  the  disposition 
there  made  by  the  decedent  of  his  property  was  in  violation 
of  an  arrangement  which  he  had  made  with  his  wife,  since 
then  deceased,  under  circumstances  which  would  have  induced 
him.  not  to  disregard  it,  had  ho  possessed  that  soundness  of 
mind  which  rendered  him  capable  of  intelligently  disposing 
of  his  property. 

The  testator's  wife,  when  he  married  her,  was  seized  in  her 
own  right  of  a  house  in  the  borough  of  Bordentown.  He 
agreed  with  his  wife,  that  if  she  would  unite  in  the  proper 
conveyances,  so  as  to  vest  the  title  of  that  property  in  him,  he 
would,  by  his  will,  dispose  of  his  property  in  a  particular  way 
Specified.  Such  conveyances  were  made.  On  the  twenty-first 
of  December,  1840,  the  property  of  his  wife  was  vested  in  the 
testator  in  his  own  right,  and  on  the  next  day  he  made  his 
will,  in  pursuance  of  the  arrangement  made  with  his  wife. 
By  that  will,  he  gives  to  his  wife,  during  her  natural  life,  the 
income  of  all  his  estate,  real  and  personal.  He  gives  to  the 
children  of  John  L.  McKnight,  the  children  of  Jacob  K. 
Train,  and  Ellen  Graham  (who  are  alleged  to  be  the  cousins 
and  heirs-at-law  of  testator's  wife,  but  of  which  there  is  no 
proof,)  the  sum  of  $3000,  to  be  divided  equally  among  them, 
share  and  share  alike.  The  said  bequest  last  named  to  be 
void  in  case  the  testator's  wife  should  leave  issue  by  him,  or 
by  any  future  husband,  and  in  such  case,  such  bequest  to  be 
for  the  benefit  of  such  issue.  The  residue  of  his  estate  he 
gives  to  such  persons  as  would  by  law  have  been  entitled  to 
his  property  had  he  died  intestate. 

By  the  will  propounded  for  probate,  the  testator  totally 
disregards  the  arrangement  made  with  his  wife,  and  which 
was  recognized  and  carried  out  by  the  will  of  1840,  except 


OCTOBER  TERM,  1858.  297 

Pancoast  v.  Graham. 

so  far  as  relates  to  the  children  of  John  L.  McKnight.  In- 
stead of  the  $3000  which  lie  had  given  to  the  children  of 
John  L.  McKniglit,  Jacob  K.  Train,  and  Ellen  Graham,  he 
gives  one  hundred  dollars  to  each  of  the  children  of  John  Li 
McKniglit,  and  makes  no  mention  of  Jacob  K.  Train's  chil- 
dren or  of  Ellen  Graham. 

I  think  the  change  which  appears  to  have  taken  place  in 
the  relative  situation  of  the  parties,  and  their  respective  cir-. 
cumstauces  between  the  years  1840  and  1853,  sufficiently 
account  for  the  different  disposition  of  the  testator's  property, 
and  his  disregard  of  the  arrangement  which  had  been  en* 
tered  into  between  him  and  his  wife,  without  attributing  it 
to  an  unsonndness  of  intellect,  which  rendered  him  incapable 
of  appreciating  any  moral  or  legal  obligation  he  might  be 
under  to  provide  for  the  next  of  kin  of  his  deceased  wife. 

His  wife  died  within  a  year  after  the  making  of  the  first 
will.  She  left  no  issue.  Thirteen  years  had  passed  since  the 
execution  of  the  will.  John  L.  McKniglit  had,  since  then, 
inherited  a  fortune  of  upwards  of  $300,000,  and  one  of  his 
children  had  settled  in  a  foreign  land.  The  children  of  Jacob 
K.  Train  were  living  in  a  distant  state  of  the  Union,  if  living 
at  all ;  but  no  one  of  the  witnesses  seemed  able  to  give  any 
account  of  them  or  of  the  whereabouts  of  Ellen  Graham. 
It  is  true  a  caveat  had  been  filed  in  their  behalf,  by  J.  L. 
McKnight  as  their  attorney,  but  no  po\vcr  of  attorney  was 
produced,  and  the  fair  presumption  is,  after  what  took  place 
on  the  investigation,  that  there  is  no  such  power  of  attorney 
in  existence.  After  the  inquiry  made  for  Ellen  Graham  and 
for  the  children  of  Jacob  K.  Train,  it  was  the  duty  of  those 
opposing  this  will  to  have  given  some  evidence  of  their  being 
still  alive,  and  of  the  authority  to  appear  for  them,  if  they 
'wished  to  attach  any  importance  to  the  fact  of  their  not  being 
mentioned  or  provided  for  by  the  will. 

Taking  into  consideration  all  these  circumstances,  I  do 
not  think  any  conclusion  unfavorable  to  the  capacit/  of  the 
decedent  can  be  drawn  from  his  not  providing  for  his  wife's 
relatives  by  his  last,  as  he  had  by  his  former  will.  The 


298  PREROGATIVE  COURT. 


Pancoast  v.  Graham. 


legacy  of  a  hundred  dollars  each  to  the  children  of  Mr. 
McKnight,  shows  that  the  arrangement  he  had  made  with  his 
wife  was  not  obliterated  from  his  memory. 

Was  the  testator,  when  he  executed  the  will  of  1853.  of 
that  sound  disposing  mind  and  memory  which  the  law  re- 
gards as  sufficient  to  render  him  competent  to  dispose  of  his 
property  by  will  ? 

•  On  the  27th  of  October,  1841,  the  decedent  was  declared 
a  lunatic  by  the  Court  of  Chancery  upon  the  usual  proceed- 
ings had  for  that  purpose  in  the  court.  Nathan  Satterthwait 
was  appointed  the  guardian  of  his  person  and  property.  He 
was  sent  to  a  lunatic  asylum  at  Frankford,  in  Pennsylvania, 
where  he  remained  seven  or  eight  years.  He  then  resided 
with  his  guardian  until  he  left  his  dwelling,  in  a  clandestine 
manner,  on  the  10th  of  November,  1851.  On  the  6th  of 
June,  1851,  he  presented  a  petition  to  the  Court  of  Chancery, 
setting  forth  the  proceedings  upon  which  he  was  declared  a 
lunatic — that  he  was  found  a  lunatic  from  disease  produced 
by  the  excessive  use  of  ardent  spirits ;  that  he  had  entirely 
ceased  and  abandoned  the  use  of  all  spirituous  liquors,  and 
was  restored  to  the  full  possession  and  enjoyment  of  his  rea- 
son and  understanding. 

After  a  full  investigation  under  the  direction  of  the  court, 
the  inquisition  of  lunacy  was  vacated,  and  the  decedent  was 
restored  to  the  full  possession  of  his  property. 

On  the  first  of  November  following,  he  purchased  a  farm 
of  eighty-two  acres,  near  Bordentown,  for  the  sum  of  three 
thousand  five  hundred  dollars;  he  stocked  this  farm,  at  a 
cost  of  nearly  $500,  and  went  to  farming;  he  bought  and 
sold  for  himself,  and  transacted  all  the  ordinary  business  re- 
quired in  carrying  on  such  a  farm  ;  he  had  very  considerable 
money  transactions  with  various  individuals ;  he  kept  a  bank 
account,  deposited  his  money,  and  drew  it  out  from  time  to 
time  by  checks;  he  kept  memoranda  books,  in  which  he  en- 
tered generally,  in  his  own  writing,  moneys  which  he  from 
time  to  time  received,  and  took  receipts  for  money  paid  out. 
The  books  are  neatly  kept,  and  the  entries  made  correctly 


OCTOBER  TERM,  1858.  299 

Pancoast  v.  Graham. 

and  intelligently.  All  these  transactions  were  almost  of  daily 
occurrence  up  to  within  a  few  days  of  his  death,  which 
occurred  in  June,  1853. 

Tha  will  was  executed  in  the  presence  of  three  subscribing 
witnesses.  It  wr,s  drawn  up  by  a  gentleman  of  intelligence, 
a  resident  of  Burlington  county,  who  had  long  been  ac- 
quainted with  the  testator.  Mr.  Tindall,  one  of  the  wit- 
nesses, had  but  a  short  acquaintance  with  him.  He  had 
known  him  only  two  years,  and  within  that  period  had 
worked  for  him,  repairing  his  farm  and  fences.  Mr.  Atkin- 
son, another  subscribing  witness,  had  known  him  for  twenty 
years;  and  the  other  witness,  Mr.  Carman,  had  been  ac- 
quainted with  him  all  his  life;  they  had  been  brought  up  as 
boys  together.  These  witnesses  all  concur  that  there  was 
not  much  said  by  the  testator  at  the  interview  when  the  will 
was  executed.  He  met  them  at  the  door  of  the  house,  and 
shook  hands  with  them.  After  remaining  a  short  time  in 
the  front  room,  the  witnesses  retired  to  a  back  room,  leaving 
Mr.  Biddle,  the  scrivener,  Samuel  Pancoast,  the  brother  of 
testator,  and  testator  in  the  room  together.  After  some  time 
the  witnesses  were  recalled.  Testator  then  took  his  seat  at 
the  table,  and  signed  the  will.  He  put  his  finger  on  the  seal, 
and  acknowledged  it  as  his  last  will  and  testament,  using 
this  language — "  throwing  all  wills  a  one  side  heretofore 
made  by  him,  or  purporting  to  have  been  made  by  him." 
After  the  execution  he  thanked  the  witnesses,  and  invited 
them  to  stay  to  dinner.  There  was  then  some  general  con- 
versation, in  which  testator  participated.  He  followed  the 
witnesses  out  of  the  room  when  they  left;  he  walked  out 
with  them  in  the  yard,  and  talked  about  the  shrubbery,  and 
showed  them  his  roses,  and  after  about  ten  minutes'  conver- 
sation in  the  yard  they  parted.  The  witnesses  all  concur  in 
the  opinion  that  he  was  competent,  at  the  time,  to  make  a 
will.  There  was  nothing  said  or  done  by  him,  at  the  time, 
to  indicate  any  want  of  capacity.  His  conversation  was  ra- 
tional, and  his  conduct  in  all  respects  unexceptionable,  and 
marked  by  no  peculiarity, 


300  PREROGATIVE  COURT. 

Paiicoast  v.  Graham. 

Resting  the  case  here,  no  one  would  doubt  the  capacity  of 
the  testator.  His  former  aberration  of  mind  had  been  occa- 
sioned by  excessive  indulgence  in  intoxicating  liquor.  It 
was  not  strange,  that  after  abstaining  from  this  indulgence 
for  upwards  of  ten  years,  and  being  perfectly  restored  to 
bodily  health,  there  should  be  a  restoration  also  of  his  men- 
tal faculties.  It  is  true,  in  such  a  case  we  are  not  to  expect 
the  mind  to  rcassumc  all  its  former  vigor.  The  question  is, 
as  was  said  in  Toicart  v.  Settars,  5  Dow  231,  whether  he  had 
recovered  that  quantum  of  disposing  mind  at  the  time  of  the 
execution  of  the  writing  which  ought  to  give  it  effect. 

But  the  caveators  meet  this  case  with  an  array  of  wit- 
nesses formidable  both  as  to  intelligence  and  numbers.  I 
have  examined  all  the  evidence  with  great  care,  with  a  sincere 
desire  that  I  might  not  err  in  my  judgment  of  the  case. 

Doct.  Dcwer  may  be  considered,  I  think,  the  most  impor- 
tant witness  for  the  caVeators,  and  his  judgment  is  entitled 
to  great  deference.  He  was  acquainted  with  the  testator  for 
fifteen  years,  and  attended  him,  as  a  physician,  while  he  was 
with  his  guardian,  and  after  his  removal  to  his  farm.  The 
doctor  states  some  facts,  as  evidences  that  he  was  not  en- 
tirely of  sound  mind  at  all  times  during  the  last  three  years 
of  his  life.  But  the  doctor  docs  not  say  that,  upon  these 
facts,  he  formed  an  opinion  that  he  was  not  competent  to 
transact  business,  or  had  not  capacity  enough  intelligently 
to  dispose  of  his  property.  He  details  several  convocations 
with  him,  and  says  that  from  them  he  was  led  to  believe  he 
was  not  entirety  restored  to  his  mind.  The  doctor  shows 
that,  in  other  interviews  with  him,  he  was  perfectly  rational, 
and  remarks,  that  "  it  frequently  happens  that  a  person  that 
lias  been  thus  afflicted  is  restored,  so  as  to  enable  him  to 
undertake  all  the  ordinary  relations  and  business  of  life  and 
to  manage  his  business  affairs,  and  yet  retain  for  a  long  time 
some  peculiarity  of  thinking  and  acting  on  particular  sub- 
jects." In  concluding  his  testimony  the  doctor  says :  "  From 
the  time  I  first  knew  Lewis  Pancoast,  I  have  known  him  to 
enjoy  lucid  intervals;  so  far  as  I  have  conversed  with  him,  I 


OCTOBER  TERM,  1858.  301 


Pancoast  v.  Graham. 


have  at  times  seen  him  so  as  lie  appeared  perfectly  sane ;  I 
mentioned  two  instances  this  morning;  judging  so  far  as  I 
could  see,  I  considered  him  to  be  perfectly  competent  to 
transact  business — I  refer  to  the  whole  time  of  my  acquaint- 
ance with  him  ;  I  have  conversed  with  him  when  lie  appeared 
as  rational  as  any  person  at  times;  during  the  last  interview 
I  had  with  him,  and  which  was  on  his  farm  the  spring  be- 
fore his  death,  he  said  or  did  nothing  indicating  insanity." 

I  place  the  utmost  reliance  upon  the  testimony  of  Doct. 
JDewer.  The  facts  he  states  are  undoubtedly  correct,  and  his 
opinion  from  his  facts  commends  itself  to  our  judgment.  If 
his  estimate  of  the  testator's  mind  is  correct,  the  validity  of 
the  will  is  not  at  all  impaired  by  his  testimony,  if  the  evi- 
dence of  the  scrivener  and  of  the  subscribing  witnesses  es- 
tablish the  fact  that  the  will  was  executed  by  the  testator  in 
a  lucid  interval.  The  doctor  being  perfectly  satisfied  that  he 
had  such  intervals,  his  evidence  corroborates  the  evidence  in 
support  of  the  will.  The  doctor  does  not  mention  a  single 
instance  of  any  interview  with  the  testator,  in  a  professional 
way,  when  he  found  him  wandering  in  his  mind.  He  speci- 
fies the  number  of  conversations  with  him  as  only  two  or 
three,  when  he  exhibited  evidences  of  a  disordered  mind,  and 
these  were  during  the  last  year  of  his  life.  Now  it  is  shown 
that,  during  the  last  year  of  his  life, 'he  indulged  in  the  use 
of  ardent  spirits.  This  would  produce  the  very  state  of  mind 
Much  the  doctor  describes.  On  the  day  the  will  wa&  exe- 
cuted there  was  nothing  in  the  testator's  conduct  to  indicate 
that  he  had  been  indulging  in  strong  drink. 

Doct.  Worthington's  testimony  has  but  little  bearing  upon 
the  question  at  issue.  He  speaks  of  the  testator  only  when 
at  the  asylum.  He  never  saw  him  after  he  left  there.  As 
to  his  opinion  when  he  last  saw  him,  that  he  never  would  be 
able  to  transact  the  ordinary  business  of  life,  it  is  proved 
erroneous  by  nearly  every  witness  sworn. 

Dod.  Longdred  was  acquainted  with  the  testator  from  the 
year  1845.  In  the  year  1851,  immediately  after  he  left  his 
guardian's,  the  doctor  visited  him  professionally,  for  the  first 

VOL.  ii.  T 


302  PREROGATIVE  COURT. 

Pancoast  r.  Graham. 

time,  several  days  in  succession.  He  continued  his  medical 
attendance  upon  him  up  to  the  time  of  his  death.  During 
the  whole  time  he  knew  him,  he  declares  he  was  an  insane 
man.  He  says  his  mental  powers  were  more  impaired,  if 
there  was  any  change  at  all,  after  he  was  restored  to  his  pro- 
perty; that  he  was  not  capable  of  attending  to  the  ordinary 
business  of  life,  could  not  keep  a  book  of  account,  and  was 
not  capable  of  judging  of  the  value  of  property  generally. 
The  doctor  says  he  does  not  believe  he  understood  who  his 
kindred  and  relations  in  life  were;  that  during  the  year 
1853  he  ha$  not  memory  and  understanding  sufficient  to 
dictate  a  will  disposing  of  his  property.  The  doctor  says 
this  defectiveness  of  mental  power  consisted  in  want  of 
memory  and  in  certain  delusions  under  which  he  was  labor- 
ing. He  gives  us  no  single  instance  in  which  a  want  of 
memory  existed.  The  delusions  under  which  he  was  labor- 
ing the  doctor  specifies  to  have  been,  that  some  twenty 
years  previous  he  had  fallen  into  a  lime-kiln,  and  been  se- 
verely burned  and  that  a  hostile  feeling  had  existed  between 
himself  and  his  father  and  his  brother  and  sister.  These 
same  facts  are  referred  to  by  all  the  witnesses  who  give  an 
opinion  unfavorable  to  his  soundness  of  mind.  But  were 
these  in  fact  delusions?  If  any  reliance  is  to  be  placed  upon 
human  testimony,  the  fact  about  the  testator's  having  been 
burned  by  falling  into  a  lime-kiln  is  proved  beyond  dispute. 
The  fact  of  the  testator's  having  been  the  owner  of  a  lime- 
kiln, and  for  a  number  of  years  carrying  on  the  business,  is 
admitted.  Three  witnesses  testify  to  having  been  present  at 
the  time  of  the  accident.  They  not  only  state  the  fact,  but 
detail  the  circumstances  of  the  occurrence — how  he  was  ex- 
tricated— placed  upon  a  settee,  and  carried  to  a  store  in  the 
neighborhood,  and  thence  to  his  own  house — the  day  of  the 
week  it  occurred — the  persons  present,  and  the  physician 
who  attended  him.  The  story,  as  it  is  told,  bears  upon  its 
face  the  impress  of  truth.  The.  witnesses  corroborate  each 
other,  and  their  characters  for  truth  and  veracity  are  not 
impeached.  The  testator  carried  the  scars  of  the  burn  all 


OCTOBER  TERM,  1858.  303 


Pancoast  v.  Graham. 


liis  life.  They  were  seen  by  a  number  of  witnesses.  With 
the  evidence  before  me,. the  fact  of  the  occurrence  cannot  be 
doubted.  The  hostility,  too,  that  the  testator  exhibited  to- 
wards his  father  and  his  brother  and  sister  is  rationally  ac- 
counted for.  He  had  difficulties  with  his  father  and  with 
his  brother  and  sister.  It  is  unnecessary  to  inquire  who  was 
in  the  right.  It  is  sufficient  for  our  purpose  to  know  that 
friendly  feelings  did  not  exist  between  the  parties.  A  con- 
clusion that  the  testator  was  of  unsound  mind,  because  he 
was  laboring  under  delusions  in  these  particulars,  is  a  con- 
clusion drawn  from  false  premises.  They  were  not  delusions. 
Doct.  Longstreet's  opinion,  that  he  was  not  capable  of  at- 
tending to  the  ordinary  business  of  life ;  that  he  had  no  ap- 
preciation of  the  value  of  property ;  did  not  understand  who 
his  kindred  and  relations  in  life  were,  and  had  not  memory 
and  understanding  enough  to  dictate  a  will,  are  proved  by 
facts  to  be  entirely  erroneous.  He  carried  on  his  farm  with 
judgment  and  economy — made  improvements  upon  his  farm 
— employed  men  to  do  the  work — bought  and  sold  property — 
paid  out  and  received  money — rented  out  property  of  which 
he  was  the  owner,  and  collected  the  rents — kept  books  of  ac- 
count, and  kept  them  neatly  and  intelligently.  In  all  these 
various  transactions  there  is  no  evidence  of  his  committing 
any  error  in  judgment,  or  of  doing  his  business  in  a  manner 
to  betray  any  lack  of  memory,  prudence,  or  understanding. 
A  witness,  who  lived  with  him  from  the  time  he  moved  on 
the  farm  tilt  his  death,  says  that  he  attended  to  all  his  ordi- 
nary business  without  any  assistance — that  the.  bargains  he 
made  were  reasonable.  He  never  knew  him  to  make  a  fool- 
ish bargain — that  he  directed  all  the  improvements  on  his 
farm,  and  that  they  were  judicious,  an<J  such  as  a  reasonable 
man  would  have  made.  This  witness  says :  "  Mr.  Pancoast 
spent  his  evenings  at  home  with  his  family  ;  he  read  the 
newspapers  to  me  in  the  evenings;  he  spoke  to  me  about 
the  news  of  the  day  and  the  contents  of  the  paper ;  he  had 
books,  and  used  to  read  them  to  me  and  my  family."  I  will 
mention  here  a  few  facts,  which  are  clearly  established,  to 


304  PREROGATIVE  COURT. 

Pancoast  v.  Graham. 

show  that  Doct.  Longstrcet  labored  under  a  great  mistake  as 
to  the  capacity  of  the  testator  to  transact  the  ordinary  busi- 
ness of  life,  and  as  to  his  being  so  entirely  destitute  of 
memory.  When  his  farm  was  taxed,  he  discovered  that  he 
was  taxed  erroneously,  and  that  no  deduction  had  been  made 
on  account  of  a  mortgage  upon  his  farm.  He  appeared  be- 
fore the  commissioners  of  appeal,  and  explained  the  error, 
and  it  was  corrected.  The  testator  purchased  of  one  indi- 
vidual seven  hundred  rails  for  his  farm,  and  made  the  bar- 
gain himself.  When  a  settlement  was  made,  it  was  found 
that  he  had  himself  kept  an  account  of  the  loads  as  they 
were  delivered,  and  it  was  correct.  He  settled  by  paying 
$30  in  cash,  and  giving  his  note  for  the  balance.  In  July, 
1852,  he  was  called  upon,  in  connection  with  one  of  his 
neighbors,  to  make  an  appraisement  of  an  intestate's  prop- 
erty at  the  request  of  the  administrator.  There  was  some 
difficulty  in  making  the  appraisement,  in  consequence  of  the 
character  of  the  property.  Mr.  Pancoast  gave  his  advice  as 
to  the  mode  of  appraisement,  which  was  followed.  The  ap- 
praisement was  completed,  and  signed  by  the  appraisers. 
One  witness  testifies  that  he  was  about  purchasing  a  farm, 
and  knowing  that  the  title  had  passed  through  some  of  the 
ancestors  of  the  testator,  he  applied  to  him  for  information, 
and  asked  him  if  he  knew  anything  Of  the  title.  He  replied 
that  he  did,  and  gave  a  general  description  of  it,  and  the  va- 
rious conveyances ;  he  stated  the  portion  of  it  that  had  come 
from  his  grandfather,  and  named  over  some  other  persons 
that  different  portions  of  it  had  come  from.  The  witness 
found  the  information  correct. 

I  have  adverted  to  but  few  of  the  numerous  facts,  to  shqw 
that  during  the  last  two  years  of  his  life  there  were  times 
when  the  testator  had  mind  enough  certainly  to  traasact  the 
ordinary  business  of  life.  They  are  certainly  at  variance 
with  the  opinion  formed  by  Doct.  Longstreet,  that  during 
the  whole  of  this  period  the  testator  was  a  lunatic,  and  not 
enjoying  lucid  intervals. 

I  think  it  unnecessary  to  examine  the  evidence  further  in 


OCTOBER  TERM,  1858.  305 

Pancoast  v.  Graham. 

detail.  There  was  a  large  number  of  witnesses  examined  on 
both  sides,  and  as  is  usually  the  case,  one  class  has  no  doubt 
of  the  testator's  capacity  to  make  a  will,  while  the  other  has 
just, as  little  doubt  of  his  incapacity.  I  have  not  deemed  it 
worth  while  to  count  them,  to  see  which  class  is  the  largest  in 
number.  We  might  as  well  decide  the  case  by  taking  their 
weight  as  by  their  numbers.  It  is  very  clear,  from  the  facts 
I  have  alluded  to,  that  whatever  may  have  been  the  general 
state  of  mind  of  testator,  he  certainly  enjoyed  lucid  intervals, 
and  at  such  times  was  perfectly  competent  to  dispose  of  his 
property.  This  being  the  case,  the  inquiry  is  narrowed  down 
to  the  point — whether,  at  the  time  he  made  the  will  in  ques- 
tion, he  was  in  the  enjoyment  of  such  lucid  interval  ?  To 
ascertain  this,  we  must  rely  upon  those  who  were  present,  and 
witnessed  the  transaction.  If  they  state  facts  to  show  that  at 
that  time  he  possessed  mind  enough  to  render  him  competent, 
the  will  must  be  established,  unless  their  testimony  is  in  some 
way  impeached. 

I  have  already  alluded  to  the  testimony  of  the  subscribing 
witnesses.  There  was  another  witness  present,  and  that  was 
the  scrivener  who  drew  the  will.  Before  adverting  to  his  tes- 
timony, however,  I  would  remark,  that  there  is  evidence  going 
to  show  that  the  testator,  prior  to  the  execution  of  the  will, 
had  frequently  declared  his  intention  to  make  a  will,  and  for 
the  very  purpose  of  making  the  alteration  he  did  make  be- 
tween this  will  and  the  will  of  1840. 

He  told  Mr.  Ellis  that  he  wished  to  obtain  the  old  will  out 
of  the  hands  of  Mr.  McKnight — said  that  it  was  a  wrong 
will,  and  that  he  had  been  too  much  influenced  in  making  it, 
and  asked  Mr.  Ellis  if  he  would  not  call  on  Mr.  McKuight 
and  get  it.  He  at  the  same  time  gave  his  reasons  why  he 
should  not  call  on  Mr.  Cannon  or  Mr.  Hutchinson  to  draw 
his  will.  He  said  the  former  would  not  do,  because  he  had 
written  the  former  will,  and  was  one  of  the  executors,  and  as 
for  the  latter  gentleman,  there  was  some  little  misunderstand- 
ing between  them  in  regard  to  his  rents. 

He  said  to  Mr.  Shreve,  very  soon  after  his  restoration  to 


306  PREROGATIVE  .COURT. 

Pancoast  >:  Graham. 

liis  property,  that  he  had  made  a  will  before  he  went  to  the 
asylum,  and  that  it  was  in  the  hands  of  Mr.  McKnight;  and 
he  requested  Mr.  Shreve  to  call  on  Mr.  McKnight  and  get 
it,  with  other  papers  of  his  in  Mr.  McKnight's  possession. 
When  Mr.  Shreve  gave  him  the  reply  of  Mr.  McKnight  to 
his  request,  that  he  had  no  papers  of  Mr.  Pancoast,  he  was 
excited,  and  declared  with  warmth  that  he  had,  and  among 
them  was  the  will,  and  that  it  was  a  will  he  had  been  forced 
to  make.  It  was  true  that  Mr.  McKnight  had  some  of  his 
papers,  and  among  them  this  will. 

He  spoke  frequently  to  Mr.  Bartlett  about  the  will  that 
was  in  Mr.  McKnight's  hands,  and  said  he  intended  to  make 
another  will.  He  complained  of  Mr.  McKnight's  treatment 
to  him,  and  said  McKuight  would  not  speak  to  him  when  he 
met  him. 

A  week  or  two  before  the  execution  of  the  will  he  had  a 
long  conversation  with  his  neighbor,  Mr.  Lawrence,  about 
his  affairs.  He  spoke  of  the  will  he  had  made,  and  said  he 
had  made  it  to  please  his  wife,  and  that  he  should  make 
another  will,  and  gave  some  reason  why  he  had  not  done  it 
before. 

There  is  another  fact  worthy  of  notice,  and  that  is,  we  find 
the  decedent  prepared  to  be  liberal  to  his  brother  Samuel. 
His  feelings  had  entirely  changed  towards  his  brother.  The 
great  anxiety  he  manifested  for  him  while  sick — his  attend- 
ance upon  him  during  his  illness — and  the  sympathy  and 
kindness  which  he  exhibited  towards  him,  were  sure  indica- 
tions of  a  radical  change  in  his  feelings.  Besides  that,  these 
affections  of  the  heart  were  the  natural  fruits  of  the  new 
light  that  had  dawned  upon  his  intellect.  Their  moral  and 
intellectual  faculties  were  congenial. 

Notwithstanding  the  very  decidedly  unfavorable  opinions 
expressed  by  the  witnesses  for  the  caveat,  of  the  testator's 
mental  capacities,  with  the  numerous  facts  before  us,  a  few 
of  which  only  I  have  referred  to,  we  are  not  surprised  at  the 
testimony  of  William  Biddle,  the  scrivener  who  drew  the 
will,  confirming  the  opinions  of  the  subscribing  witnesses  to 


OCTOBER  TERM,  1858.  307 


Pancoast  v.  Graham. 


the  will,  that  at  the  time  of  its  execution  the  testator  was  of 
sufficiently  sound  mind,  memory,  and  understanding  to  trans- 
act that  important  business. 

Mr.  Biddle  had  been  acquainted  with  him  for  twenty-six 
or  twenty-eight  years,  intimately  the  last  few  years  of  his 
life.  Samuel  Pancoast,  the  brother  of  decedent,  called  on 
the  witness  on  the  morning  of  the  10th  of  April,  '1853,  and 
told  him  his  brother  Lewis  wished  him  to  come  to  his  house, 
and  write  his  will.  The  witness  and  Samuel  went  out  to- 
gether to  decedent's  farm.  He  met  them  at  the  door,  and 
invited  them  in.  After  some  little  conversation,  the  witness 
alluded  to  the  occasion  of  his  visit.  Pie  said  he  thought  he 
would  have  his  will  written,  and  told  his  brother  to  tell  wit- 
ness to  come  out,  if  he  saw  him.  The  witness  then  goes  on 
to  say,  "  I  remarked  to  him  that  I  was  not  'very  well  pre- 
pared to  write  his  will,  but  if  he  would  give  me  the  heads  of 
what  he  wanted  wrote  I  would  take  it  down ;  he  then  went 
and  got  some  paper  and  ink,  and  as  I  was  going  to  take 
them  up,  Samuel  Pancoast  got  up  out  of  his  chair  to  leave 
the  room.  Lewis  said,  Samuel,  don't  go  out.  He  dictated 
to  me  what  he  wanted  in  his  will,  and  I  took  down  as  he 
dictated  to  me,  except  one  paragraph  ;  I  read  it  over  to  him 
after  I  had  taken  it  down,  and  he  said,  I  want  you  to  leave 
two  or  three  lines  blank — I  may  think  of  something  else  I 
have  forgot ;  he  then  said,  when  can  you  have  it  ready,  and 
bring  it  here;  I  said,  almost  any  time,  and  I  fixed  the  next 
Monday,  which  I  think  was  the  17th  of  April,  and  he  said, 
very  well."  The  witness  then  goes  on  to  Itate  what  took 
place  at  that  interview  after  this  business  was  through. 
There  was  nothing  said  or  done  by  the  testator  that  ex- 
hibited anything  at  variance  with  his  soundness  of  mind. 
The  witness  then  details  Avhat  took  place  on  the  day  the  will 
was  executed.  He  went  there  on  the  following  Monday  with 
the  will,  as  he  had  promised.  The  testator,  he  says,  met 
them  at  the  door,  and  invited  them  in.  After  a  few  mo- 
ments' conversation,  the  three  gentlemen  who  were  in  attend- 
ance as  subscribing  witnesses  went  into  another  room.  The 


308  PREROGATIVE  COURT. 

Pancoast  r.  Graham. 

witness  then  says :  "  After  they  went,  Lewis  asked  me  if  I 
had  the  will  with  me;  I  answered  yes,  and  took  it  out  of  my 
pocket,  and  handed  it  to  him ;  he  read  it  over  very  carefully 
or  appeared  to,  and  handed  it  back  to  me;  I  then  asked  him 
if  it  was  all  right;  he  said,  yes,  as  far  as  it  goes;  there  is 
one  thing,  says  he,  I  want  in  that  is  not  here ;  I  then  said, 
there  is  a  vacancy  left,  as  you  wanted,  to  put  anything  in ; 
it  is  the  last  item  in  the  will;  the  sixth  item  was  then  put  in 
at  his  house:  'I  do  revoke  all  former  wills  by  me  made,  or 
purporting  to  have  been  made  by  me.'  He  gave  me  the 
words,  which  I  inserted — I  took  them  from  his  lips.  After  I 
wrote  the  sixth  item,  I  asked  him  if  there  was  anything  fur- 
ther to  write;  he  said  no,  except  naming  the  executors;  he 
did  not  name  his  executors  the  first  day  I  was  there.  I  then 
filled  up  the  last  item,  and  had  it  ready  for  execution ;  he 
then  took  the  will  out  of  my  hand,  and  read  it  over  again, 
and  said  it  was  all  right,  and  told  his  brother  Samuel  to  call 
the  witnesses  out  of  the  other  room ;  he  then  came  up  to 
the  desk,  in  the  presence  of  those  witnesses  and  myself  and 
Samuel,  took  up  the  pen,  and  wrote  his  name  opposite  the 
seal ;  put  his  finger  on  the  seal,  and  acknowledged  it  to  be 
his  hand  and  seal,  and  his  last  will  and  testament."  To  the 
question,  whether  he  considered  the  testator  of  sound  mind, 
memory,  and  understanding  at  the  time,  he  replied  :  I  con- 
sidered him  to  be  so;  I  had  not  the  least  doubt  about  it 
either  time  I  was  there;  if  I  had  had  a  doubt  about  his  tes- 
tamentary capacity,  I  would  not  have  drawn  a  will  for  him. 

My  conclusiiins,  upon  a  review  of  the  whole  case,  are  these. 

First.  It  appears  beyond  a  doubt  that  the  testator,  after 
he  was  restored  by  the  Court  of  Chancery  to  the  possession 
and  management  of  his  property,  had  lucid  intervals,  in 
which  he  was  perfectly  competent  to  make  a  will.  I  do  not 
mean  to  say,  that  at  any  period  after  he  was  resiored  to  his 
property  he  was  incompetent;  but  that,  giving  to  the  evi- 
dence of  the  caveators  its  greatest  influence,  it  proves  nothing 
more  than  that  the  testator  was  a  lunatic  with  lucid  inter- 
vals. 


OCTOBER  TERM,  1858.  SOD 


Pancoast  v.  Graham. 


Second.  The  three  subscribing  witnesses  to  the  will,  and 
the  scrivener  who  drew  it,  and  was  present  at  its  execution, 
present,  by  their  testimony,  a  body  of  facts,  embracing  the 
conversation,  conduct,  and  particular  acts  of  the  testator, 
which,  if  their  testimony  is  to  be  relied  upon,  establish 
clearly  that  this  will  was  the  product  of  the  testator's  mind 
alone — that  he  dictated  it  with  intelligence — comprehended 
it  in  all  its  bearings — appreciated  the  ties  of  kindred,  and 
understood  the  character  and  extent  of  the  property  dis- 
posed of. 

Third.  There  is  no  evidence  going  to  impeach  the  moral 
character  or  intelligence  of  these  witnesses.  There  is  no  pre- 
tence that  the  insanity  alleged  was  of  that  subtle  character 
as  to  deceive  or  mislead  them.  The  only  evidence  of  any 
pertinent  fa.ct  bearing  upon  the  material  time  of  inquiry  as 
to  the  testator's  mind  is  this:  it  is  proved  that  about  that 
time,  and  within  a  few  days  of  the  execution  of  the  will,  and 
for  a  succession  of  several  weeks,  large  quantities  of  ardent 
spirits  were  purchased  at  the  neighboring  stores,  and  carried 
to  the  residence  of  the  testator.  But  there  is  no  pretence 
that  he  was  under  the  influence  of  liquor  on  the  day  of  the 
execution  of  the  will,  or  had  been  indulging  at  all  on  that 
day  in  the  use  of  it.  The  evidence,  therefore,  was  only  im- 
portant as  going  to  show  the  producing  cause  of  general  in- 
capacity ;  and  as  I  have  already  observed,  that  if  any  such 
general  incapacity  existed,  the  subject  of  it  had  lucid  inter- 
vals, it  leaves  the  evidence  of  the  witnesses,  as  to  the  sound- 
ness of  the  testator's  mind  at  the  particular  time  the  will  was 
executed,  unimpeached. 

Fourth.  The  testimony  of  the  subscribing  witnesses,  as  to 
the  sanity  of  the  testator,  is  strengthened  by  the  facts,  that 
the  will  is  a  reasonable  one  on  the  face  of  it,  and  that  its 
contents  correspond  with  the  repeated  declarations  of  the 
testator. 

Fifth.  In  the  examination  of  this  case,  the  following  con- 
sideration is  entitled  to  some  weight.  By  this  will,  the  pro- 
perty mainly  is  given  to  the  heirs-at-law  and  next  of  kin, 
who  are  satisfied  with  the  will  as  it  stands.  There  is  no  other 


310  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

will  propounded  for  probate.  The  cavcators,  if  they  claim 
as  devisees  or  legatees  under  another  will,  should  have  pro- 
pounded it  for  probate.  No  other  will  is  offered  for  probate, 
and  the  presumption  is  that  if  this  will  is  not  established  the 
decedent  died  intestate.  If  this  is  so,  the  caveators  will  de- 
rive no  benefit  from  defeating  this  will,  and  the  property  of 
the  decedent  will  go  to  the  persons  who  are  satisfied  with  the 
disposition  made  of  it  by  the  testator  by  the  will  in  question. 


DAVID   K.    BOYLAX   and    others,   appellants,   and  ISAAC 
MEEKER  and  others,  respondents.* 

When,  in  a  controversy  about  the  probate  of  a  will,  it  was  alleged  that 
the  paper  offered  for  probate  was  not  a  genuine  will,  but  that  it  was  sur- 
reptitious or  procured,  and  was  never  executed  by  testator  as  his  will,  it 
was  held  that,  in  that  aspect  of  the  case,  it  was  competent  for  the  cavea- 
tors to  show  that  the  provisions  of  the  will  in  controversy  were  contrary 
to  the  expressed  intentions,  views,  and  feelings  of  the  deceased  before 
the  time  it  bears  date,  and  to  his  declarations  subsequently  made. 

The  will  offered  for  probate  held,  after  an  elaborate  review  of  the  evidence, 
to  have  been  fraudulent  and  surreptitious,  and  not  executed  by  the  tes- 
tator. 

The  costs  and  counsel  fees  of  the  party  offering  the  will  for  probate  were 
ordered  to  be  paid  out  of  the  estate,  because  of  the  absence  of  direct 
proof  of  fraud  on  the  part  of  the  party  offering  it,  or  of  knowledge  on 
his  part  that  it  was  surreptitious,  although  he  was  a  large  beneficiary 
under  it. 


This  cause  came  before  the  Ordinary  on  an  appeal  from  a 
decree  of  the  Orphans  Court  of  the  county  of  Essex,  refusing 

*See  Boylan  ads.  Meeker,  4  Dutcher  274. — Although  this  very  able  and 
interesting  opinion  of  Mr.  Justice  Potts  was  delivered  as  long  ago  as  1854, 
and  is  almost  exclusively  confined  to  a  discussion  of  questions  of  fact,  the 
reporter  has  thought  proper  to  publish  it  here  (greatly  out  of  its  chrono- 
logical order)  in  order  that  our  reports  may  exhibit  all  the  phases  of  the 
litigation  arising  out  of  this  remarkable  case  in  our  state  courts.  It  may 
be  added,  that  an  action  of  ejectment  was  brought  by  a  party  claiming  under 
this  will  in  the  Circuit  Court  of  the  United  States  for  the  District  of  New 
Jersey,  which  resulted  in  a  verdict  for  the  plaintiff,  thus  establishing  by 
the  verdict  of  a  jury  in  that  cause  the  genuineness  and  validity  of  the  will. 


FEBRUARY  TERM,  1854.  311 

Boylan  v.  Meeker. 

to  admit  to  probate  a  paper  purporting  to  be  the  last  will  of 
Jonathan  M.  Meeker,  deceased,  propounded  by  David  K. 
Boylan,  who  was  named  as  one  of  the  executors  in  the  will, 
and  to  whom  large  legacies  were  given  by  it. 

The  decree  appealed  from  also  denied  costs  and  expenses  to 
the  party  propounding  the  paper. 

The  case  was  heard  in  the  Prerogative  Court,  before  the 
Honorable  Stacy  G.  Potts,  one  of  the  associate  justices  of  the 
Supreme  Court,  who  was  called  in  to  hear  it  by  the  Ordinary. 

Bradley  and  W.  Pennington,  for  appellants. 
Frelinghuysen  and  A.  Whitehead,  for  respondents. 

POTTS,  J.  The  Orphans  Court  of  the  county  of  Essex,  on 
the  15th  June,  1853,  decreed  that  a  certain  paper,  propounded 
for  probate  in  this  cause,  marked  Exhibit  A,  and  bearing  date 
the  12th  day  of  January,  1852,  is  not  the  true  last  will  and 
testament  of  Jonathan  M.  Meeker,  the  alleged  testator  therein, 
&c.,  and  that  the  same  has  not  been  well  proved,  and  ought 
not  to  be  established  or  admitted  to  probate,  &c.  From  this 
decree  David  K.  Boylan  and  others  appeal  to  this  court;  and 
the  question  is,  whether  there  is  error  in  that  decree. 

The  testimony  and  exhibits  taken  and  made  in  the  court 
below  are  before  us.  The  case  is  one  of  much  importance, 
the  evidence  very  voluminous,  and  in  some  of  its  aspects  sin- 
gularly conflicting  and  embarrassing.  The  case  has  been  most 
elaborately  and  ably  argued ;  and  I  have  endeavored  to  give 
to  it  a  careful,  patient,  and  attentive  examination. 

The  deceased  was  an  old  gentleman,  of  about  seventy-two 
years  of  age,  residing  at  New  Providence,  in  Essex  county. 
The  paper  propounded  as  his  will  is  alleged  to  have  been  exe- 
cuted by  him  on  the  evening  of  the  12th  January,  1852,  at 
the  house  of  Mr.  Jonathan  E.  Hoyt,  and  in  the  presence  of 
lloyt's  family  ;  and  to  have  been  taken  away  by  him  when 
he  left  the  next  morning.  It  is  further  alleged,  that  some 
weeks  afterwards — from  one  to  three  or  four— he  brought 


312  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

it  again  to  Mr.  Hoyt,  and  deposited  it  with  him,  and  that  it 
WMS  then  enveloped  and  sealed  up,  and  remained  in  Mr. 
Hoyt's  custody  until  some  ten  days  after  the  testator's  de- 
cease, which  occurred  on  the  22d  day  of  May,  more  than 
four  months  after  the  time  of  the  alleged  execution.  It  was 
then  opened,  and  deposited  by  Mr.  Hoyt  with  the  surrogate, 
and  subsequently  offered  for  probate. 

I  propose  to  consider  the  questions  presented  by  this  appeal 
in  the  following  order: 

I.  Did  Jonathan  M.  Meeker,  the  deceased,  actually  execute 
a  will  at  the  house  of  Jonathan  E.  Hoyt  on  the  evening  of 
the  12th  January,  1852?       - 

II.  If  he  did,  was  he  at  that  time  of  sound  and  disposing 
mind,  memory,  and  understanding? 

III.  And  if  both  these  questions  are  settled  in  the  affirma- 
tive, the  only  remaining  inquiry  will  be,  is  the  paper  offered 
for  probate  that  will  f 

.  Then  as  to  the  alleged  execution  of  a  will  at  Hoyt's  at 
the  time  specified. 

Hoyt  lived  about  eight  miles  from  the  residence  of  Meeker. 
Two  witnesses,  Valentine  and  Bonnell,  testify,  that  on  the 
afternoon  of  the  12th  of  January,  1852,  half  an  hour  to  an 
hour  before  sunset,  the  deceased  called  upon  them,  in  New 
Providence,  with  a  sleigh  and  pair  of  black  horses,  and 
wanted,  first  one,  and  then  the  other  of  them,  to  go  with  him 
to  Newark.  Said  he  was  going  there  that  night  to  stay  with 
Isaac  Miller,  and  that  his  business  was  to  sell  his  horses  to 
the  plank  road  company,  as  he  had  no  hay  for  them.  He 
offered  Valentine  $5,  and  Bonnell  $3  or  $5  a  day  to  go  with 
him,  but  they  declined. 

Next  we  find  him  at  Hoyt's,  some  five  miles  out  of  the  di- 
rect joad  from  New  Providence  to  Newark.  That  he  came 
there  that  evening,  somewhere  between  dusk  and  eight  o'clock, 
with  a  sleigh  and  two  black  horses ;  that  he  took  tea,  re- 
mained all  night,  and  went  awny  next  morning  after  break- 
fast, is  proved  by  the  concurrent  testimony  of  Mrs.  Maria 


FEBRUARY  TERM,  1854.  313 

Boylan  v.  Meeker. 

L.  Hoyt,  the  wife,  Anna,  Elizabeth,  and  Mary  Hoyt,  the 
daughters  of  Jonathan  E.  Hoyt,  Charles  KUgee,  the  coachman, 
and  Patrick  and  Sarah  O'Shaughnessy,  servants,  who  resided 
in  the  family  at  the  time.  All  except  the  O'Shaughnessys 
testify  that  Hoyt  was  not  at  home  when  deceased  came — that 
he  inquired  for  Hoyt,  said  he  had  business  with  him,  and 
had  his  horses  put  tip  for  the  night  before  Hoyt  returned. 
Hoyt  swears  that  he  found  him  there  when  he  returned 
home  from  New  York  that  evening.  Patrick  testifies  that 
Hoyt  was  at  home  when  deceased  arrived,  and  Sarah  says 
she  believes  he  was  at  home.  Valentine  says  he  thinks  de- 
ceased subsequently  told  him  that  he  had  stayed  at  Hoyt's 
the  night  he  had  desired  witness  to  go  to  Newark  with  him. 
There  is  nothing  in  the  evidence  to  contradict  these  Avit- 
nesses  upon  this  point;  and  it  must  be  taken  as  an  established 
fact,  that  the  deceased  spent  the  night  of  the  12th  of  January, 
1852,  at  Hoyfs  house. 

Then  as  to  the  evidence  of  the  execution  of  the  will.  Jona- 
than E.  Hoyt,  one  of  the  subscribing  witnesses,  testifies,  in  sub- 
stance, that  he  had  no  notice  or  premonition  of  the  intention 
of  Mr.  Meeker  to  execute  the  will  before  he  found  him  at 
his  house  that  evening.  That  Meeker  then  told  him  he  had 
come  to  make  his  will,  or  have  it  executed,  and  wanted  him, 
Hoyt,  to  witness  it.  After  he  had  made  known  his  business, 
says  Hoyt,  I  invited  him  into  another  room,  and  deceased 
said,  I  now  want  you  to  witness  my  will.  I  asked  him  if  he 
had  got  his  will  drawn.  He  said  he  had.  He  then  took  it 
out  of  his  pocket  or  pocket-book,  and  read  it  to  me,  and 
asked  what  I  thought  of  it.  I  told  him  I  thought  he  had 
done  very  liberally  by  his  wife,  taking  into  consideration  her 
age,  and  the  property  which  she  already  had,  as  he  said,  in 
her  own  right.  I  then  told  him.  I  thought,  as  he  had  asked 
my  opinion,  that  he  had  probably  given  too  much  to  Mr. 
Boylan,  although  I  did  not  know  the  value  of  the  property. 
I  then  asked  him  if  lie  had  not  better  alter  that  part  of  the 
will.  He  said  no ;  if  he  was  to  alter  it  he  would  give  him 
more,  and  he  wanted  no  dictation.  I  then  asked  him  why  he 


314  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

asked  my  opinion  in  regard  to  the  will.  He  said,  out  of  mere 
courtesy.  I  then  asked  him  if  it  would  no*  be  more  judi- 
cious to  give  his  nephew,  Jonathan  M.  Meeker,  of  Elizabeth- 
town,  some  part  of  what  he  had  there  given  Mr.  Boylan. 
He  said  no,  he  had  given  Jonathan  enough,  and  he  would 
spend,  no  doubt,  what  he  had  given  him  in  his  will  in  a  few 
years;  and  furthermore,  he  had  a  great  dislike  to  his,  Jona- 
than M.  Meeker's,  wife.  I  then  told  him  that  his  nephew  had 
named  his  youngest  sou  after  him,  and  would  it  not  be  bet- 
ter to  do  something  for  him,  and  less  for  Mr.  Boylan.  He 
said  names  did  not  cost  anything,  and  he  wanted  no  more 
dictation.  I  then  told  him  I  was  not  acquainted  with  any  of 
his  legal  heirs-at-law,  except  Mr.  Jonathan  M.  Meeker  and 
Mr.  Jonathan  M.  Muir,  and  of  course  I  had  nothing  more  to 
say  in  behalf  of  any  of  his  other  nephews  and  nieces,  and  if 
he  was  determined  that  that  should  be  his  will,  I  would  get 
some  one  to  witness  the  will  with  me.  After  this  conversa- 
tion, we  went  into  the  other  room,  where  the  family  was.  I 
then  told  him,  in  the  presence  of  the  family,  that  I  thought 
he  had  better  see  Mr.  James  F.  Meeker,  of  Elizabethtown, 
and  show  him  the  will,  and  consult  him,  as  he  was  a  gentle- 
man that  I  had  confidence  in,  and  was  an  old  acquaintance 
of  his,  and  I  presumed  Mr.  Meeker  would  think  as  I  did 
with  regard  to  giving  Mr.  Boylan  as  much  as  he  had.  He 
said  he  did  not  wish  to  consult  anyone  what  he  should  do 
with  his  property — all  he  wanted  was  to  have  the  will  exe- 
cuted. He  spoke  of  his  nephews  and  nieces  in  general  terms, 
and  seemed  to  be  willing  that  Mr.  Boylan  should  have,  as  he 
said,  the  lion's  share  out  of  his  estate,  as  he  always  found  a 
comfortable  and  hospitable  home  at  Mr.  Boylan's  house,  and 
if  property  would  make  him  a  man,  he  should  have  the  oppor- 
tunity. He  further  said,  (this  was  when  we  were  alone) — he 

had    taken  this   matter   thoroughly  into  consideration,  had 

.  '  •  . 

made  a  good  many  wills,  and  the  last  one  previous  to  this  he 

had  given  his  wife  but  §1000  in  her  own  right,  with  the  use 
of  certain  other  property;  and  at  the  time  he  made  the  will, 
he  said  he  was  mad,  and  he  was  determined  not  to  give  his 


FEBRUARY  TERM,  1854.  315 

Boy  Ian  v.  Meeker. 

wife  much ;  that  she  had  troubled  him  a  good  deal  when  he 
wished  to  convey  lands,  by  withholding  her  name  from  the 
deed,  and  he  invariably  had  to  buy  her  off.  I  said  to  him 
that  I  thought  the  will  he  then  wished  to  execute  was  alto- 
gether more  to  his  credit  than  the  September  will.  He  then 
said,  you  refused  to  witness  that  will,  and  now  you  are  not 
willing  to  witness  this.  I  told  him  I  thought  there  were  ob- 
jections, in  my  mind,  to  both  of  them,  but  I  was  not  willing 
to  witness  any  man's  will  that  was  worth  what  he  said  he  was, 
giving  his  wife  only  the  pitiful  sum  of'  $1000  in  her  own 
right. 

Of  the  fact  of  the  execution,  he  says,  being  shown  the  pa- 
per purporting  to  be  the  will,  he  has  seen  tjiat  paper  before  ; 
the  handwriting  of  "  J.  Edwards  Hoyt"  to  the  attestation  of 
the  will  is  his.  The  signature,  "Anna  Hoyt,"  to  the  attest- 
ation of  the  will  is  hers — he  saw  her  write  it.  The  signa- 
ture of  "Jonathan  M.  Meeker,"  signed  at  the  foot  of  the 
will,  is  the  handwriting  of  the  testator — he  saw  him  write  it. 
The  signature  "Jonathan  M.  Meeker,"  on  the  margin  of  the 
several  leaves  of  that  will,  is  testator's — he  saw  him  write 
the  signatures.  He  says  that  himself,  his  daughter  Anna, 
and  some  or  all  his  family  were  present  at  the  time;  that  he 
started  to  go  for  a  neighbor,  a  Mr.  Brown,  to  be  a  witness'; 
that  it  was  storming,  and  he  did  not  go ;  that  himself  and 
Anna  witnessed  the  will  at  testator's  request.  He  describes 
particularly  the  manner  in  which  the  will  was  executed — on 
a  portfolio  laid  on  the  table — the  testator  signing  it  first  at 
the  foot;  then  putting  the  seal  on;  testator's  putting  his  two 
fingers  on  the  seal,  and  saying,  this  is  my  will — I  wish  you  to 
witness  it  for  the  purposes  within  mentioned ;  that  the  attest- 
ing witnesses  then  subscribed  their  names,  and  then  the  tes- 
tator wrote  his  name  on  the  margin  of  the  several  leaves. 
He  says  the  attesting  clause  was  written  by  himself  at  tes- 
tator's request;  and  that  after  the  will  was  executed,  witness 
enveloped  it  in  a  sheet  of  letter  paper,  and  the  testator  put 
it  in  his  pocket-book  or  pocket.  He  says  the  testator  read 
the  will  once  to  him  in  the  private  room;  and  once  in  the 


316  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

presence  of  the  family  on  that  occasion;  that  he  assigned,  as 
a  reason  for  writing  his  name  on  the  margin,  that  it  made  it 
stronger,  and  he  had  done  it  before  on  others-ills,  and  as  a 
reason  for  coming  to  Hoyt's  to  execute  it,  that  he  wanted  to 
make  a  private  will;  that  he  had  made  a  good  many  wills,  and 
talked  too  much  about  them,  and  was  determined  to  have  one 
will  the  world  should  know  nothing  about. 

Anna  Hoyt,  the  other  subscribing  witness,  details  the  his- 
tory of  the  execution  of  the  will  with  great  particularity. 
She  was  the  first  witness  examined.  Her  account  is  sub- 
stantially similar  to  that  subsequently  given  by  her  father. 
She  says  her  father,  mother,  and  two  sisters  wore  present  at 
the  time;  that  testator  read  over  the  will  in  their  presence 
and  hearing  before  he  executed  it,  and  talked  about  it  some 
time  before  affixing  his  signature.  That  her  father  told  Mr. 
Meeker  he  had  much  better  go  somewhere  else  to  get  it  exe- 
cuted. Mr.  Meeker  said  he  could  have  it  done  nowhere  as 
privately  as  he  wished,  and  it  was  only  at  his  most  urgent 
solicitations  that  Mr.  Hoyt  finally  consented.  Mr.  Hoyt  told 
him  he  thought  he  had  not  been  liberal  enough  witli  Mrs. 
Meeker;  that  Mrs.  Meeker  had  always  been  very  economical, 
and  had  done  as  much  to  acquire  the  property  as  he  had. 
Testator  replied,  that  he  had  made  her  a  much  more  liberal 
allowance  than  he  had  made  her  in  a  will  he  had  previously 
made  in  the  autumn ;  that  she  was  advanced  in  years,  and 
would  have  no  use  for  any  property  long;  and  at  the  same 
time  said  that  he  did  not  come  there  to  have  Mr.  Hoyt  dic- 
tate his  will ;  that  he  knew  what  to  do  with  his  own  pro- 
perty without  consulting  any  one;  that  it  was  his  own  pro- 
perty, and  he  should  do  what  he  chose  with  it.  He  said  that 
he  liked  none  of  his  relations;  that  he  liked  Mi's.  Mceker's 
much  better  than  his  own ;  that  he  had  had  several  plans  for 
giving  his  property  away  from  his  relations  entirely,  but 
that  some  of  them  were  in  quite  needy  circumstances,  and 
he  had  concluded  to  help  them  all  a  little.  Mr.  Hoyt  asked 
him  if  he  had  no  brothers  or  sisters  living.  He  replied  that 
he  had  one  brother  who  was  wealthy,  and  had  only  one  child, 


FEBRUARY  TERM,  1854.  317 

.  Boylan  v.  Meeker. 

and  that  he  would  give  him  nothing — that  he  had  enough  for 
himself  and  his  child.  Mr.  Hoyt  asked  him  what  had  be- 
come of  his  favorite  plan  of  establishing  the  Meeker  Insti- 
tute, of  which  he  had  been  always  talking.  He  replied,  that 
lie  thought  it  on  the  whole  a  foolish  plan,  and  that  the  money 
would  do  his-  relations  more  good ;  that  the  town  of  New 
Providence  would  never  thank  him  for  it  after  he  was  dead 
and  gone ;  that  the  grass  would  grow  over  his  grave,  and  his 
grave-stone  full  before  any  of  them  would  take  the  trouble  to 
set  it  up.  Mr.  Hoyt  told  him  he  thought  he  had  given  Mr. 
Boylan  too  much.  Mr.  Meeker  said,  no  more  of  your  dicta- 
tion ;  as  I  told  you  before,  I  wish  no  interference  with  regard 
to  the  disposition  of  my  property  from  yourself  or  any  one 
else.  I  have  always  thought  a  great  deal  of  Mr.  Boylan  ; 
he  has  always  treated  me  very  kindly  and  hospitably,  and  is 
a  very  promising  young  man,  and  I  intend  to  do  all  that 
money  can  to  make  something  of  him.  He  also  spoke  of 
Mrs.  Boylan,  and  said  she  had  always  treated  him  with  uni- 
form kindness.  He  spoke  of  his  relations  by  name,  but  not 
knowing  them,  and  having  never  seen  any  of  them,  with  one 
or  two  exceptions,  it  would  be  impossible  for  me  to  recollect 
what  he  said  in  regard  to  them.  He  said  he  had  twenty  or 
thirty  nephews  and  nieces;  that  he  did  not  care  for  any  of 
them ;  that  if  there  had  been  any  of  them  equal  to  Mr.  Boy- 
lan, he  should  not  have  hesitated  what  to  have  done  with  all 
his  property.  He  spoke  of  having  aided  some  of  his  rela- 
tions; but  not  knowing  them,  witness  does  not  recollect  with 
any  particularity  who  they  were  whom  he  had  aided ;  that 
they  had  always  squandered  what  he  had  given  them,  and  it 
had  been  of  no  use ;  that  he  had  no  doubt  that  all  he  had  left 
them  at  his  decease  would  be  spent  in  three  or  four  years. 

The  witness  said  further,  that  she  saw  her  father  write  the 
clause  of  attestation ;  that  Mr.  Meeker  said  he  had  yot  the 
will  written  in  Neio  York — that  he  had  got  some  person  there 
to  write  it,  but  does  not  recollect  that  he  mentioned  who; 
that  the  reason  he  gave  for  writing  his  name  on  the  margin 
of  each  sheet  was  to  make  the  matter  sure,  so  that  no  one; 

VOL..  ii.  u 


3J8  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

could  mistake  it ;  it  was  done  of  his  own  accord,  without  any 
one  suggesting  it.  She  says  the  testator  used  a  gold  pen — 
he  tried  several  before  he  found  one  that  suited  him,  and 
wrote  his  name  several  times,  so  as  to  show  us  what  a  hand- 
some writer  he  was.  He  said  there  were  so  many  young 
ladies  looking  at  him  he  must  do  his  best. 

To  subsequent  questions  put  to  the  witness,  she  said — the 
conversation  on  the  subject  of  the  will,  on  the  evening  of  its 
execution,  commenced  after  Mr.  Hoyt's  return  ;  Mr.  Meeker 
stated  in  substance,  that  he  had  come  there  on  important  busi- 
ness— that  he  had  come  to  have  his  will  executed.  Mr.  Hoyt 
told  him  that  he  had  hoped  he  would  make  his  will  some- 
where else,  and  leave  him  a  handsome  legacy.  Mr.  Meeker 
replied  that  he  had  enough  already,  and  had  no  idea  of  doing 
anything  of  that  kind.  Then  Mr.  Meeker  asked  Mr.  Hoyt 
if  he  could  not  see  him  in  another  room  for  a  few  minutes. 
They  went  into  another  room  and  stayed  a  short  time,  and 
returned  with  the  document.  The  seal  Avas  put  on  the  will 
in  her  presence ;  her  sister  cut  it — she  saw  her  do  it. 

This  is  the  testimony  of  the  two  subscribing  witnesses  as 
to  the  execution  of  the  paper,  and  the  circumstances  attending 
it.  Then  we  have  the  evidence  of  three  other  witnesses,  who 
were  present  at  the  time.  Mrs.  Hoyt,  the  wife,  aifd  two  other 
daughters  of  Mr.  Hoyt,  Elizabeth  and  Mary  L. 

Elizabeth  Hoyt  testifies  that  she  remembers  Mr.  Mocker's 
visit  in  January ;  that  her  father  was  not  at  home  when  he 
came.  When  her  father  returned,  Mr.  Meeker  told  him  he 
wished  to  speak  to  him  in  private,  and  they  went  into  another 
apartment.  He  told  her  father  he  was  sorry  he  did  not  find 
him  at  home  on  the  occasion  of  a  previous  visit  he  had  made 
to  the  house  between  Christmas  and  New  Year,  and  had 
hoped  to  have  seen  him  at  New  Providence.  Her  father  told 
him  he  had  had  no  time  to  go  there.  They  were  not  long  in 
the  room,  only  a  few  minutes.  They  returned  to  the  sitting- 
room,  where  the  family  then  were.  Mr.  Meeker  said  he 
wisned  to  have  the  will  which  he  held  in  his  hand  executed. 
There  was  some  little  conversation,  and  Mr.  Meeker  sat  down 


FEBRUARY  TERM,  1854.  319 

Boylan  v.  Meeker. 

by  a  lamp,  and  read  the  will.  He  read  the  will  aloud.  When 
he  read  what  he  had  given  to  Mrs.  Meeker,  he  stopped  a 
moment,  and  some  one  spolw,  and  said  he  had  done  very  litUe 
for  her;  that  he  had  not  given  her  half  what  he  ought  to  have 
done.  He  said  she  had  given  him  a  great  deal  of  trouble 
about  the  execution  of  papers — that  she  would  not  sign  her 
name  to  papers  without  some  compensation — that  it  was  more 
than  she  could  spend.  He  then  spoke  in  regard  to  a  bequest 
he  had  made  to  a  niece  who  was  deranged.  Some  one  re- 
marked that  he  had  not  given  his  brother  anything  ;  he  said 
his  brother  had  enough,  more  than  enough,  and  that  he  should 
not  give  him  anything.  After  he  had  read  what  he  had  given 
Mr.  Boylan,  Mr.  Hoyt  told  him  he  thought  he  had  given  him 
too  much.  Mr.  Meeker  said  he  did  not  come  to  be  dictated 
to.  There  was  considerable  conversation — a  great  deal  that 
I  can't  remember.  Mr.  Hoyt  told  him  he  had  better  take 
the  will  to  Elizabethtown,  to  a  lawyer  there,  I  think  by  the 
name  of  Meeker,  and  have  it  executed  there ;  that  he  knew 
noting  about  his  relations,  personally  or  otherwise,  and  that 
he  preferred  to  have  nothing  to  do  with  it.  Mr.  Meeker 
said  he  wished  it  to  be  perfectly  private  ;  that  if  he  took  it  to 
the  person  Mr.  Hoyt  designated  it  would  soon  be  noised 
abroad  what  he  had  done  with  his  property,  which  he  did  not 
wish.  Mr.  Hoyt  told  him  he  was  sorry  he  had  not  executed 
the  will  somewhere  else,  and  given  him  something.  There 
was  some  little  joking  about  that,  and  Mr.  Meeker  said  he 
had  enough  already.  Mr.  Meeker  asked  which  of  the  young 
ladies  would  witness  the  will;  he  said  that  it  was  necessary 
that  some  person  besides  Mr.  Hoyt  should  witness  it — that  two 
witnesses  were  necessary.  Mr.  Hoyt  said  he  preferred  some 
person  else  should  witness  it  besides  one  of  his  daughters, 
and  he  started  to  go  for  a  person  living  near  us — Mr.  Brown. 
Why  he  did  not  go  I  don't  remember.  My  impression  is  it 
stormed,  or  Mr.  Meeker  objected.  I  think  he  asked  me  if  I 
would  witness  it.  He  said  I  had  the  same  name  as  his  wife ; 
he  had  a  peculiar  fancy  for  the  name,  and  asked  me  to  wit- 
ness it.  I  think  I  had  seen  more  of  him  than  my  other  sis- 


MO  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

ters.  I  told  him  no,  and  he  asked  my  sister  Anna,  and  she 
consented  to  do  so.  I  got  pens  and  ink  and  paper,  and  a 
pair  of  scissors,  and  cut  a  seal,  as  he  requested  me  to  do.  I 
had  forgotten  to  state  that,  before  the  seal  was  affixed,  Mr. 
Meeker  requested  my  father  to  write  something  at  the  end 
of  the  paper,  which  he  did.  He  wrote  a  few  lines.  Then 
Mr.  Meeker  took  up  the  pens,  examined  them,  and  asked  for 
a  quill  pen.  The  pens  were  gold  pens,  four  or  five  of  them. 
I  went  and  got  some  quills,  but  no  one  had  a  pen-knife.  He 
said  that  he  could  not  write  with  metallic  pens,  but  preferred 
quill  pens.  He  wrote  his  name  on  a  piece  of  paper  several 
times,  until  he  found  a  pen  which  he  liked  among  the  gold 
pens.  He  remarked  that  he  could  write  better  than  any  of 
us.  After  a  while — after  some  little  conversation  about  the 
pens — he  put  his  finger  upon  the  seal  affixed  to  the  will,  and 
said  it  was  his  last  will  and  testament  for  the  purposes  within 
mentioned.  It  was  the  usual  form,  but  I  have  forgotten  the 
exact  words.  My  father  and  sister  Anna  afterwards  wrote 
their  names.  Mr.  Meeker  wrote  his  name  on  the  margin* of 
the  will,  whether  before  or  after  my  father  and  sister  had 
signed  their  names  can't  say,  don't  remember.  After  the  will 
was  signed,  there  was  some  conversation.  Mr.  Meeker  took 
it,  and  pid  it  in  his  pocket-book — I  should  think  a  pocket- 
book;  he  put  it  with  other  papers.  I  think  there  was  more 
conversation,  after  he  put  the  will  in  his  pocket-book,  between 
him  and  my  father.  After  the  will  was  executed,  he  requested 
each  one  of  us  that  we  should  not  mention  it  to  any  one.  He 
gave,  as  a  reason,  that  his  relations  were  always  talking 
about  his  property,  and  his  disposition  of  it,  and  he  was  de- 
termined to  keep  one  thing  from  them. 

Mrs.  Maria  L.  Hoyt  testifies  that  she  recollects  the  exe- 
cution of  the  will;  that  she  was  present  most  of  the  time; 
it  was  in  the  early  part  of  January,  1852,  severely  cold 
weather  and  snow  on  the  ground.  Mr.  Meeker  came  in  a 
sleigh,  between  sunset  and  dark ;  the  will  was  executed  be- 
tween seven  and  ten  in  the  evening.  He  came  alone ;  I  saw 
him  first  in  our  dining-room ;  he  came  in  with  his  overcoat ; 


FEBRUARY  TERM,  1854.  321 

Boylan  v.  Meeker. 

inquired  for  Mr.  Hoyt ;  Mr.  Hoyt  was  not  at  home.  He  said 
he  was  anxious  to  see  him,  but  gave  no  reason  for  wishing  to 
see  him.  He  was  told  that  Mr.  Hoyt  was  expected  home 
soon ;  and  Mr.  H.  did  come  about  seven  o'clock — my  impres- 
sion is  he,  Hoyt,  had  been  to  New  York.  Think  testator 
took  tea  with  the  family.  From  his  arrival  until  Mr.  Hoyt 
came  home  he  was  in  the  dining-room  seated,  talking  with 
the  family.  He  had  been  relieved  of  his  overcoat,  and  his 
horses  taken  to  the  stable  before  Mr.  Hoyt  returned,  and  he 
had  said  he  should  stay  all  night,  and  had  given  directions 
about  his  horses,  and  his  blankets  in  particular,  not  to  have 
them  put  on  the  horses,  as  they  were  new.  He  said  he  con- 
sidered his  horses  sold  to  the  plank  road  company.  He  re- 
quested a  private  interview  with  Mr.  Hoyt  as  soon  as  he  came 
in,  or  not  long  after;  they  went  into  what. we  call  our  win- 
ter parlor,  and  were  there  for  a  time,  can't  say  how  long, 
(should  not  think  more  than  half  an  hour.  They  then  came 
out  with  a  paper,  which  I  understood  from  Mr.  Meeker  was 
a  will.  Mr.  Meeker  had  the  paper.  He  had  on,  or  put  on 
his  spectacles,  and  read  it  aloud.  I  did  not  hear  it  all,  as  I 
was  out  of  the  room  once  or  twice,  but  I  heard  the  most  of 
it.  He  signed  his  name  after  the  will  was  read.  My  daugh- 
ter Elizabeth  prepared  a  seal  in  my  presence  and  in  the  pre- 
sence of  us  all,  and  he  declared  the  will  to  be  his  will.  Mr. 
Hoyt  and  my  daughter  Anna  witnessed  it.  Mr.  Hoyt,  I 
think,  wrote  something  at  the  bottom  of  it — I  don't  know 
what  it  was — it  was  written  at  Mr.  Meeker's  request.  I  ob- 
jected to  cither  of  my  daughters  witnessing  it.  Mr.  Hoyt 
started  for  a  neighbor  of  ours — Mr.  Brown ;  for  some  reason 
or  other  he  did  not  go ;  it  was  snowing,  I  think,  quite  fast. 
There  was  considerable  discussion  about  the  different  be- 
quests. Mr.  Hoyt  and  my  daughter  Anna  witnessed  the  will 
at  Mr.  Meeker's  request.  He,  Meeker,  signed  it,  I  think, 
more  than  once ;  on  the  margin  of  some  or  all  the  leaves,  be- 
sides at  the  foot.  Mr.  Hoyt,  myself,  and  three  daughters, 
Mary,  Anna,  and  Elizabeth,  were  present.  I  was  not  present 
all  the  time  it  was  being  read — I  was  while  it  was  executed ; 


322  PREROGATIVE  COURT. 

Boy  Ian  v.  Meeker. 

the  others  were  present  during  the  time,  as  far  as  I  know. 
There  was  considerable  conversation  in  regard  to  the  pen ; 
he  did  not  like  the  gold  pen,  he  liked  quill  pens  best.  He 
said  he  was  a  good  writer — could  write  better  than  any  of 
us.  I  don't  recollect  all  the  discussion  (about  the  will),  be- 
cause I  did  not  know  the  parties.  1  told  him  I  thought  he 
ought  to  be  liberal  with  Mrs.  Meeker,  as  there  were  no  chil- 
dren. He  said  he  had  given  her  more  than  she  would  ever 
want;  he  said  she  had  a  good  deal  of  her  own ;  he  said  they 
had  always  had  separate  interests,  and  he  had  been  obliged 
to  give  her  from  time  to  time  to  get  her  to  sign  his  papers ; 
he  spoke,  while  reading  over  the  paper,  about  the  niece  he 
had  that  had  been  deranged ;  he  said  she  was  in  the  Retreat, 
I  think;  I  don't  remember  her  name;  I  think  he  said  she 
was  a  daughter  of  his  sister;  he  mentioned  her  name  while 
reading  over  the  bequest  to  her.  He  spoke  also  of  a  niece 
of  his  wife — I  think  her  name  was  Tully — said  she  would 
probably  be  Mrs.  Meeker's  heir ;  he  said  he  liked  her  very 
much;  he  mentioned  several  other  of  his  relatives  as  he  read, 
but  I  don't  remember  their  names.  He  said  he  had  thought 
of  giving  money  to  a  seminary  or  institute,  but  I  understood 
he  had  relinquished  the  idea,  but  did  not  wish  the  people  of 
New  Providence  to  know  it ;  he  said  he  had  given  them  some 
encouragement  for  such  an  institution,  and  they  would  be 
angry  if  he  did  not — would  make  it  uncomfortable  for  him — 
be  angry  enough  to  ride  him  on  a  rail.  I  think  there  was  a 
provision  in  favor  of  J>.  K.  Boglan;  Mr.  Hoyt  rather  in- 
sinuated that  he  thought  he  was  pretty  liberal  with  him ; 
testator  said  he  thought  Mr.  Boylan  was  a  very  fine  young 
man,  and  he  wanted  he  should  have  a  good  start  in  the  world. 
He  rather  resented  suggestions  made  by  Mr.  Hoyt  in  regard 
to  the  will,  and  seemed  to  think  he  knew  what  to  do  with  hi? 
own  better  than  other  people  could  tell  him.  Recollects  there 
was  a  provision  in  the  will  for  Jonathan  M.  Meeker,  jun. ; 
heard  him  speak  about  that  before.  He  said  he  had  acquired 
a  large  property,  and  now  there  was  no  one  to  yive  it  to  that 
/t€  cared  for  in  particular,  to  whom  he  would  like  to  give  the 


FEBRUARY  TERM,  1854.  323 

Boylan  v.  Meeker. 

bulk  of  it.  In  speaking  of  Jonathan  M.  Meeker,  jun.,  the 
nephew  of  his,  he  said  he  had  received  many  kindnesses  and 
much  assistance  from  his  father  in  early  life,  and  liked  him 
very  well,  but  did  not  like  his  wife.  He  said  he  would  give, 
or  had  given  him  something  handsome.  She  thinks,  when 
the  will  was  executed,  the  testator  put  it  in  his  pocket-book. 

Mary  E.  Hoyt  is  the  last  witness  examined  in  reference 
to  the  execution  of  the  will.  She  is  a  daughter  of  Jonathan 
E.  Hoyt,  and  says  she  was  present  at  the  time.  That  testator 
came  alone  with  a  sleigh  and  two  horses  about  dusk  ;  that  as 
soon  as  he  came  in  he  sent  word  to  the  man  who  took  his 
horses  not  to  put  the  blankets  on  them,  and  said  he  con- 
sidered them  as  good  as  sold.  Her  father  was  not  at  home. 
Testator  inquired  for  him — took  off  his  overcoat — warmed 
himself  at  the  register — took  tea — and  said  he  was  anxious 
to  see  Mr.  Hoyt,  and  had  business  of  great  importance,  which 
must  be  attended  to  at  once.  When  Mr.  Hoyt  returned,  tes- 
tator said  he  wished  to  see  him  on  business,  and  they  retired 
to  another  room,  the  winter  parlor,  at  testator's  request — 
were  absent  perhaps  fifteen  minutes — the  room  was  warm — 
they  took  a  light  with  them.  They  returned  together.  Tes- 
tator then  had  a  paper  in  his  hand,  said  it  was  a  will  which 
he  wished  to  have  executed.  He  sat  down  at  the  table,  and 
read  it  aloud;  my  father,  mother,  two  sisters,  Elizabeth  and 
•Anna,  and  myself  were  present.  The  paper  was  then  exe- 
cuted in  our  presence,  about  seven  o'clock.  I  saw  testator 
sign  his  name  on  the  bottom  of  the  page  and  on  the  margin 
of  the  leaves.  After  he  had  put  his  name  to  the  bottom  of 
the  page,  he  put  his  hand  on  the  seal,  and  said  it  was  his 
last  will  and  testament  for  the  purposes  therein  mentioned. 
The  will  was  then  witnessed  by  my  father  and  sister  Anna 
at  testator's  request.  I  think  they  witnessed  it  before  the 
signatures  were  made  in  the  margin.  He  said  he  made  those 
signatures  that  there  might  be  no  mistake  about  it.  He  used 
a  metallic  pen — tried  it  several  times  on  a  piece  of  paper — 
said  he  was  a  good  writer,  and  could  write  better  than  any 
of  us.  The  execution  of  the  will  and  the  conversations  about 


324  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

it  occupied  an  hour  and  a  half  or  two  hours.  He  asked  my 
sister  Elizabeth  first  to  witness  the  will;  she  objected;  my 
father  proposed  some  one  should  be  called  in  out  of  the 
family ;  he  objected  to  that — said  he  wished  it  to  be  kept 
private,  and  preferred  one  of  the  others  to  witness  it — asked 
my  sister  Anna,  and  she  did  it.  My  father  started  for  a  Mr. 
Brown  to  witness  it — Meeker  was  opposed,  and  it  stormed 
at  the  time.  Father  had  been  to  New  York  that  day.  The 
testator  read  the  entire  will,  as  far  as  I  know.  After  it  was 
executed,  he  put  it  in  his  pocket.  Father  wrote  a  few  lines 
just  before  the  signing  of  the  will,  at  the  end  of  it,  at  testa- 
tor's request.  I  saw  the  signatures  of  father  and  Anna  at 
the  time  they  were  made.  We  were  all  sitting  at  the  table 
in  the  centre  of  the  dining-room.  Looking  at  the  paper,  she 
says  the  clause  beginning  "in  witness,"  &c.,  is  her  father's — 
she  saw  him  write  it.  I  saw  the  signatures  of  Jonathan  M. 
Meeker,  J.  Edwards  Hoyt,  and  Anna  Hoyt  made. 

We  have,  then,  the  testimony  of  five  witnesses  to  the  fact 
of  the  execution  of  a  will  by  the  testator  on  the  12th  Janu- 
ary, the  day  of  the  date  of  the  attestation.  True,  the  credit 
of  one  of  them,  J.  Edwards  Hoyt,  is  seriously  impaired  by 
evidence  in  the  cause,  but  the  other  four  are  in  no  wise  im- 
peached. They  narrate  all  that  occurred,  and  much  that  was 
said  on  the  occasion,  with  great  particularity.  Their  state- 
ments in  the  main  corroborate  each  other.  I  can  discover 
no  discrepancies,  indeed,  which  might  not  be  expected  natu- 
rally to  exist  in  the  recollection  of  five  persons  as  to  a  series 
of  acts  and  conversations  and  circumstances  occurring  several 
months  before  the  examinations  took  place.  That  Meeker 
was  at  the  house  of  Hoyt  at  the  time  cannot  be  questioned. 
In  themselves,  considered  apart  from  all  the  other  facts  and 
circumstances  in  the  cause,  there  is  nothing  in  the  narrations 
given  by  these  witnesses  which  strikes  the  mind  as  extra- 
ordinary or  unnatural. 

It  is  difficult  to  imagine  how  the  fact  of  the  execution  of  a 
will  could  be  more  directly  and  positively  proved.  There 
seems  to  be  no  reasonable  ground  to  doubt  that  a  will  was 


FEBRUARY  TERM,  1854.  325 

Boylan  v.  Meeker. 

executed  by  the  testator  at  the  house  of  Jonathan  E.  Hoyt  on 
the  evening  of  the  12th  of  January,  1852.  In  such  statements 
as  we  have  here,  with  all  these  circumstances,  these  details, 
these  minutiae,  this  corroboration,  and  this  compactness  and 
agreement  as  a  whole,  I  repeat  there  can  be  no  doubt  as  to 
the  fact  of  the  execution  of  some  such  paper  as  the  one  now 
in  question  by  the  testator  on  the  occasion  referred  to. 

Taking  it,  then,  as  a  fact  clearly  established  in  the  cause 
by  evidence,  the  force  of  which  cannot  be  resisted — that  a 
will  was  executed — 

II.  I  pass  next,  in  the  order  in  which  I  propose  to  examine 
this  subject,  to  the  question  :  Was  Jonathan  M.  Meeker,  at 
the  time  of  the  alleged  execution,  of  sound  and  disposing  mind, 
memory  and  understanding  ? 

1.  A  number  of  witnesses  were  examined  upon  this  point. 
On  the  part  of  the  caveators,  witnesses  testify  that,  in  the 
latter  part  of  testator's  life,  in  their  opinion,  his  mind  was 
very  much  impaired,  so  much  so  that  they  think  he  was  not 
competent  to  conduct  his  own  business;  that  his  memory 
had  failed  to  a  great  extent;  that  sometimes  he  was  unable 
to  count  money  or  calculate  with  accuracy;  sometimes  in 
conversation  he  appeared  insane  or  childish;  for  six  months 
before  his  death  (he  died  in  May,  1852,)  his  health  went 
down,  both  body  and  mind.  In  the  latter  part  of  November, 
or  first  of  December,  1851,  Mr.  Brookfield  had  an  interview 
with  him,  and  thinks  that  at  that  time  he  was  not  of  sound 
mind  or  capable  of  attending  to  business.  He  was  some- 
times troublesome  in  business  matters.  Once  made  a  propo- 
sition to  Mr.  Valentine  in  reference  to  his,  testator's,  wife, 
which  indicated  insanity,  if  intended  seriously.  In  conver- 
sation he  would  fly  from  one  thing  to  another — his  discourse 
disjointed — not  totally  beside  himself,  but  childish — had  no 
power  of  self-control  on  subjects  that  excited  him — was  some- 
times perfectly  infuriated  on  such  subjects.  Letters  and  pa- 
pers in  his  handwriting  are  produced  which  indicate  that  his 
mind  was  at  times  little  better  than  a  chaos  of  confused  ideas, 


526  PREROGATIVE  COURT. 

Boylan  ».  Meeker. 

while  other  papers — the  will,  particularly  of  September,  1852, 
show  that  at  other  times  he  understood  himself  very  well,  and 
could  express  his  thoughts  intelligibly  on  paper. 

2.  He  is  shown  to  have  entertained  many  visionary  ideas. 
He  endeavored  to  persuade  Jothara  Potter  that  money  could 
be  made  by  erecting  a  factory  on  a  small  stream  which  in  a 
wet  time  ran  down  the  side  of  a  steep  hill,  but  the  bed  of 
which  was  dry  in  common  times.  He  would  buy  stock  some- 
times, and  oiler  to  sell  i't,  as  he  said,  for  less  than  cost,  ad- 
mitting that  he  did  not  know  why  he  purchased  it;  that 
immediately  after  doing  so,  he  saw  he  was  injuring  himself, 
and  sometimes  thought  himself  that  he  was  not  Jit  to  do  busi- 
ness; he  talked  very  extravagantly  about  the  natural  advan- 
tages of  New  Providence,  and  how  it  might  be  made  a  great 
city;  he  very  often  put  an  absurd  valuation  on  hi.s  property, 
and  sometimes  offered  to  give  away  property ;  he  had  an 
idea  that  a  great  water-power  could  be  created  by  tunnelling 
Long-hill  and  drafning  the  great  swamp,  and  had  very  ex- 
travagant'notions  of  the  feasibility  of  such  a  project  and  its 
results.  On  one  occasion,  he  called  on  Mr.  Brookfield,  of 
Morristown  (one  of  the  commissioners),  to  complain  that  the 
books  of  subscription  to  the  stock  of  a  contemplated  railroad 
from  Elizabethtown  to  Morristown  had  not  been  opened — 
was  quite  excited  about  it,  and  Mr.  Brookfield  had  to  assure 
him  the  books  should  be  opened,  at  a  particular  time  and 
place,  to  appease  him;  he  said  he  would  be  there,  and  if  the 
stock  was  not  all  taken  in  two  hours  he  would  take  it  him- 
self. It  would,  the  witness  supposed,  have  taken  §300,000 
to  build  the  road.  When  the  time  appointed  came,  the  tes- 
tator did  not  attend.  He  would  say  that  his  wife  had  royal 
blood  in  her  veins,  was  related  to  the  reigning  family  of  Eng- 
land, and  ought  to  be  on  the  throne ;  bilked  of  a  vision  he 
had  about  it,  and  of  going  to  New  York  to  have  it  written 
out.  Proposed  to  bet  Mr.  Corey  §1000  that  he  would  raise 
2600  bushels  of  corn  on  about  ten  acres  of  land ;  told  him 
he  believed  he  had  a  lizard  in  him,  his  mouth  was  so  bitter; 
talked  to  Mr.  Minton,  of  Chatham,  about  building  a  road 


FEBRUARY  TERM,  1854.  327 

Boylan  v.  Meeker. 

round  a  mill-pond,  and  putting  a  steamboat  in  it,  and  said  he 
thought  people  from  New  York  would  patronize  it,  and  said 
very  many  strange,  idle,  and  foolish  things. 

3.  On  subjects  of  an  exciting  character  he  had  become 
very  violent  and  unreasonable.  An  act  was  passed,  in  1850, 
authorizing  the  common  council  of  Newark  to  take  lauds  for 
public  parks,  and  the  council  having  taken  some  of  his  lands 
for  that  purpose,  he  was  extremely  exasperated,  and  de- 
nounced without  stint  or  measure  the  law  and  council  and 
everybody  that  had  anything  to  do  with  the  measure,  and 
often  talked  and  acted  in  reference  to  that  subject  wildly  and 
irrationally — "wild  as  wild  could  be,"  as  some  of  the  wit- 
nesses express  it.  He  thought  the  act  unconstitutional ;  that 
the  conduct  of  the  council  was  good  cause  for  revolution — 
better  than  the  colonies  had — and  sometimes  talked  largely 
of  raising  one — threatened  to  flog  one  of  the  aldermen,  and 
whip  the  whole  council;  came  to  the  legislature  to  get  the 
law  repealed  in  the  winter  and  spring  of  1852,  and  annoyed 
everybody  he  met  exceedingly  by  his  obtrnsiveness,  irrita- 
bility, and  childishness;  applied  to  a  printer,  Mr.  Hull,  to 
print  a  pamphlet  for  him  on  the  subject,  and  offered  to  pay 
any  price  for  it,  which  Mr.  Hull  declined,  thinking  him  not 
in  his  right  mind.  On  the  subject  of  taking  his  land  for  a 
park,  several  witnesses,  members  of  the  legislature  and  others, 
say  his  mind  was  s6  much  excited  that  he  could  not  be  called 
saue  in  their  opinion,  and  many  facts  and  circumstances  in 
regard  to  his  conduct  in  that  matter  are  detailed,  which  un- 
doubtedly furnish  strong  ground  for  such  a  conclusion.  He 
offered  to  give  McCormick  a  large  part  of  the  park  lot  if  he 
would  build  an  arcade  or  bulkhead  there.  His  valuation  of 
his  lot  at  $20,000,  far  more  than  it  was  really  worth ;  his 
offer  to  give 'Amos  Wilcox  somebody's  note  for  $1000  as  a 
present;  his  affirming,  on  one  occasion,  that  he  could  get 
500,000  people  in  Newark  to  sign  a  remonstrance  against 
the  law  respecting  parks,  and  similar  indications  of  a  wild 
recklessness  in  conversation,  are  exhibited  in  the  testimony. 
Aud  it  is  in  evidence  that  from  the  time  the  trouble  about 


328  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

the  park  began  seriously  to  affect  him,  his  health  and  strength, 
both  of  mind  and  body,  gradually  failed. 

Such  is  substantially  the  scope  of  the  evidence  adduced  by 
the  caveators  to  prove  that,  on  the  12th  of  January,  1852, 
the  testator  was  incompetent  to  make  a  will.  I  am  of  opinion 
that  the  evidence  does  substantially  establish  the  proposition, 
that  there  were  periods,  during  the  winter  of  1851—2,  in 
which  the  deceased  was  not  of  sound  and  disposing  mind  and 
memory — periods  in  which  his  faculties  were  so  much  im- 
paired as  that  he  had  no  rational  comprehension  of  the  sub- 
ject matter  with  which  he  dealt — in  which  he  might  have 
done,  in  reference  to  the  disposition  of  his  property,  what  his 
returning  reason  and  judgment  would  not  have  sanctioned — 
periods  in  which  he  might  have  been  made  the  victim  of  an 
artifice  by  one  who  had  carefully  studied  the  character  and 
condition  of  his  mind,  and  in  whose  way  he  had  happened  to 
fall  at  a  time  favorable  for  such  an  attempt. 

It  must,  however,  be  admitted  that  this  was  not  by  any 
means  the  habitual  condition  of  the  deceased's  mind  during 
the  last  year  of  his  life,  embracing  the  winter  of  1851-2. 
And  it  is  a  most  important  fact  in  this  cause  that  in  the 
opinion  of  the  subscribing  witnesses  to  the  will,  and  of  the 
others  who  were  present  at  its  execution,  the  deceased  was 
of  sound  mind  at  tlie  time  of  the  execution.  Speaking  of  his 
condition  on  the  evening  of  the  12th  January,  Jonatlian  E. 
Hoyt  says  the  deceased  understood  what  he  was  about;  con- 
sidered him  a  sharp,  shrewd  man;  saw  no  difference  as  to 
his  mind,  memory,  and  understanding  from  what  he  had 
been  when  he  first  knew  him.  Anna  Hoyt  says  "he  was  of 
good  capacity  and  understanding."  Elizabeth  Hoyt  says, 
"  from  what  she  saw  of  him  at  the  time  the  will  was  exe- 
cuted, he  was  of  sound  disposing  mind  and  memory."  Maria 
L.  Hoyt  says  that  at  the  time  he  appeared  sound  for  aught 
she  saw — she  saw  nothing  that  led  her  to  doubt  or  suspect 
the  soundness  of  his  mind — he  appeared  calm,  composed,  and 
conversed  as  usual.  Mary  E.  Hoyt  says  she  saw  nothing  at 
the  execution  of  the  will  but  what  was  in  perfect  keeping 


FEBRUARY  TERM,  1854.  329 

Boylan  v.  Meeker. 

with  his  former  conduct  and  character — he  seemed  to  under- 
stand fully  the  nature  of  the  instrument  he  was  executing — 
she  considered  him.  of  sound  mind — saw  nothing  to  the  con- 
trary— he  was  perfectly  calm  and  composed,  and  remarked 
upon  the  different  provisions  of  the  Avill  as  he  read  it  aloud, 
&c.  There  is,  too,  much  testimony  as  to  his  ordinary  state 
of  mind  of  a  favorable  character.  Mr.  Harriot,  in  November 
or  December,  1851,  went  with  testator  to  the  common  coun- 
cil, when  the  (to  him)  exciting  subject  of  the  appropriation 
of  his  property  for  a  park  was  before  them,  and  testator  was 
endeavoring  to  get  the  aldermen  to  protest  against  their 
final  action,  and  says  he  was  perfectly  coherent  and  sane — 
mind  not  off  its  balance  in  the  least — appeared  as  he  had  for 
three  or  four  years — always  thought  him  a  shrewd  man. 
The  same  opinions  substantially  as  to  his  state  of  mind,  in 
the  winter  and  spring  of  1851—2,  are  expressed  by  Archibald 
Woodruff,  William  Johnson,  and  some  twenty  others  of  his 
neighbors  and  acquaintances,  among  whom  are  Doct.  Pierson 
and  Doct.  Darcy,  gentlemen  not  likely  to  be  deceived  on  such 
a  subject  Avith  their  opportunities  of  judging.  Doct.  Pierson 
says,  "I  always  considered  testator  of  a  peculiar  tempera- 
ment of  mind — he  was  very  opinionative  and  very  tenacious 
of  his  own  views,  and  seemed  to  get  readily  excited  if  .others 
did  not  think  as  he  did  on  every  and  on  any  subject.  He 
seemed  to  think  himself  always  as  certainly  correct  in  his 
own  views  of  a  subject,  and  that  others  ought  to  yield  to 
him  if  they  differed  from  him.  I  have  never  discovered  any 
want  of  understanding  or  mental  capacity."  Doct.  Darcy 
speaks  of  his  situation  in  February,  1852,  when  he  came  to 
Trenton  in  reference  to  the  law  respecting  the  Newark  parks; 
talked  with  him,  and  says  he  did  not  discover  that  he  was 
any  way  deficient  in  the  state  of  his  mind — was  the  same  as 
formerly,  except  what  might  naturally  arise  from  a  person  of 
his  make  of  mind  owing  to  advanced  years. 

It  is  in  evidence  that  up  to  the  period  of  his  last  sickness, 
he  was  in  the  habit  of  attending  to  and  transacting  his  own 
business — bought  and  sold — collected  and  loaned  out  money 


330  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

— gave  directions  to  his  lawyers  about  the  conduct  of  his  legal 
business — travelled  a  good  deal  from  home — and  no  instance 
is  produced,  in  the  history  of  his  business  transactions,  of  his 
making  a  foolish  bargain  with  anybody,  or  sacrificing  any 
of  his  property  or  interests  in  the  latter  part  of  hi,s  life. 
His  visionary  ideas  exhibited  fhemselves  in  talking  rather 
than  in  acting — he  talked  of  the  profit  of  such  enterprises 
as  building  factories  on  wet  weather  streams,  or  putting 
steamboats  in  mill-ponds,  or  tunnelling  Long-hill,  but  he 
never  put  his  own  hand  to  any  such  enterprises ;  he  said  he 
would  take  the  whole  stock  of  a  railroad  company,  and  build 
the  road,  but  he  did  not  take  a  share;  he  proposed  bets  and 
made  offers  to  give  away  property,  but  he  made  no  bets  and 
gave  no  property  without  an  equivalent.  Nor  do  I  think 
the  evidence  establishes  the  fact,  that  there  was  positive  men- 
tal delusion  even  in  his  wildest  extravagancies.  He  did  not 
fancy  things  to  exist  which  did  not  exist,  and  could  not  by 
any  possibility  have  an  existence  in  the  nature  of  things. 
Many  opinions  to  which  he  gave  expression  in  serious  moods 
might  be  opinions  against  reasonable  probability;  but  error 
in  judgment,  in  opinion,  in  belief,  is  not  delusion.  That  a 
water-power  might  be  created  by  tunelling  Long-hill — that 
a  pond  of  several  acres  might  be  beautified  and  made  at- 
tractive— was  -true ;  the  first  was  a  project  others  had 
thought  of  as  well  as  Mr.  Meeker.  Mr.  Potter  had  a  stream, 
on  his  land  which  in  wet  weather  would  turn  a  mill.  The 
appropriation  of  his  land  for  a  public  park  was  a  fact.  There 
was,  it  seems,  some  old  tradition  that  the  Townley  family, 
from  whom  his  wife  descended,  was  related  to  the  royal  blood 
of  England — a  dream  it  might  be,  but  it  did  not  originate  in 
his  mind. 

Now  all  this  evidence,  taken  together,  can  hardly  be  con- 
sidered, I  think,  as  going  further  than  to  establish  the  fact 
that  there  were  occasions  when  his  conversation  and  conduct 
were  inconsistent  with  what  might  be  expected  in  a  man  of 
sound  intellect.  But  when  the  intellect  is  impaired  at  all,  the 
question  as- to  the  extent  of  capacity  remaining  becomes  one 


FEBRUARY  TERM,  1857.  331 

Boylan  v.  Meeker. 

of  the  most  difficult  of  all  questions  to  deal  with  ;  and  when 
we  are  called  upon  to  form  an  opinion  as  to  the  mental  condi- 
tion of  a  man  from  his  conduct  and  conversations,  it  is  essen- 
tial that  we  should  understand,  if  we  can,  the  original  charac- 
teristics of  the  mind  we  are  contemplating,  in  order  that  we 
may  compare  the  mental  phenomena  relied  upon  to  establish 
insanity,  with  that  exhibited  when  the  subject  was  confessedly 
sane. 

According  to  the  testimony  of  witnesses  who  had  known 
the  testator  a  long  time,  lie  was  a  man  of  singularly  marked 
characteristics.*  He  was  generally  esteemed  as  possessing 
more  than  ordinary  strength  of  mind — shreAvd,  sharp,  of 
great  mental  and  physical  activity ;  exacting,  avaricious, 
persevering,  determined,  and  obstinate.  His  property  and 
affairs  were  generally  his  principal  topics  of  conversation — 
he  was  boastful  of  his  wealth,  power,  capacity,  and  informa- 
tion. Was  very  talkative — talked  very  largely,  told  strange 
stories  about  the  products  of  his  farming  operations — talked 
largely  of  public  improvements  and  schemes.  Had  a  high 
opinion  of  his  legal  knowledge — was  habitually  dictatorial, 
and  pursued  his  purposes  with  indomitable  energy.  Was 
rather  visionary  in  his  cast  of  mind — and  more  in  the  habit 
of  suggesting  visionary  projects  than  attempting  them.  There 
was,  one  witness  intimates,  a  good  deal  of  what  is  called  hum- 
bug in  his  conversation,  and  this  appeared  to  increase  very 
rapidly  for  two  or  three  of  the  last  years  of  his  life.  "  He 
was,"  says  Mr.  Magee,  "  a  curious  man,  and  it  wanted  a  wiser 
head  than  mine  to  understand  him  always."  "He  had," 
says  Mr.  Dougherty,  "peculiar  ways  with  him,  which  you 
would  have  to  become  acquainted  with  him  in  order  to  un- 
derstand. He  had  as  many  projects  for  making  money  and 
improvements,  and  talked  as  largely  as  any  man  you  could 
find."  He  was  a  man  of  strong  prejudices  and  passions — 
impulsive,  irritable,  ungovernable  in  his  temper,  and  when 
provoked  his  resentment  knew  no  bounds — and  all  these 
characteristics  became  'more  prominent  as  age  and  debility 
crept  on. 


332  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

Now,  comparing  the  evidence  as  to  the  testator's  general 
character  of  miiid  with  what  is  detailed  of  his  conduct  and 
conversations  about  the  time  of  the  execution  of  this  will, 
and  looking  at  the  circumstances  which  were  present  and 
operating  with  their  influences  upon  him — advanced  age, 
enfeebled  from  physical  disease,  irritated  extremely  by  the 
proceedings  of  the  Newark  councils  in  taking  his  lands  un- 
der what  he  thought  an  unconstitutional  law,  I  confess  I  am 
unable  to  reach  the  conclusion  that  he  had  what  may  be  called 
a  uniform  capacity.  Indeed,  while  the  weight  of  evidence 
is,  I  think,  clearly  in  favor  of  his  capacity  when  in  ordinary 
health  and  free  from  causes  of  excitement,  yet  it  was  no 
dcubt  to  some  extent  a  fluctuating  capacity,  greatly  impaired 
at  times,  and  occasionally  sinking  into  the  imbecility  of  second 
childhood. 

But  as  the  case  stands  here  upon  the  question  of  the  com- 
petency of  the  deceased  at  the  time  of  the  execution,  I  have  no 
hesitation  in  saying,  upon  the  evidence  before  the  court,  that 
his  competency  is  proved. 

III.  The  question  of  identity  remains.     Is  the  paper  pro 
pounded  for  probate  the  same  will  which  was  executed  by  tJie 
testator  on  the  1  '2th  of  January  ? 

The  caveators  take  the  ground,  that  however  conclusive  the 
proof  may  be  that  a  will  was  executed  by  the  deceased  at 
Hoyt's,  and  though  he  may  have  been  sane  at  the  time,  yet 
that  this  paper  cannot  be  his  last  will  and  testament.  That 
there  is  overwhelming  evidence  to  show  that  he  always  con- 
sidered, spoke  of,  and  acted  upon  the  provisions  of  another 
will  as  his  last  will,  that  there  are  strong  grounds  to  believe 
that  this  paper  is  not  genuine,  and  that  if  a  will  was  executed 
by  him  at  Hoyt's  it  was  subsequently  destroyed. 

This,  it  seems  to  me,  is  really  the  only  question  of  serious 
doubt  in  the  cause,  and  it  demands  a  careful  consideration. 

It  will  be  remembered  that  the  witnesses  who  testify  to 
the  execution  of  a  will  at  Mr.  Hoyt's  on  the  12th  Of  January, 


FEBRUARY  TERM,  1854.  333 

Boylan  v.  Meeker. 

all  agree  that  after  the  paper  had  been  executed,  the  testator 
put  it  in  his  pocket  or  pocket-book. 

No  witness  except  Jonathan  E.  Hoyt  testifies  to  having 
again  seen  this  paper  until  early  in  June,  after  the  testator's 
decease. 

Jonathan  E.  Hoyt  says,  that  on  the  evening  of  the  12th, 
before  retiring,  the  testator  requested  him  to  take  and  keep 
the  will,  which  he  reluctantly  consented  to  do;  that  they 
breakfasted  next  morning  about  nine  o'clock ;  that  before 
leaving,  the  testator  said  he  would  like  to  take  the  will  with  him, 
in  order  to  Show  it  to  some  friend  or  friends,  and  that  he  gave 
it  to  him. 

No  witness  is  produced,  however,  to  whom  the  deceased 
ever  showed  such  a  will. 

Mr.  Hoyt  testifies  that  the  deceased  afterwards  brought  the 
will  back  to  him  ;  that  he  enveloped  and  endorsed  it,  and  put 
it  away  with  his  own  papers.  The  envelope,  so  endorsed, 
was  seen  by  the  other  witnesses  who  were  members  of  his 
family,  but  the  paper  endorsed  was  not  seen  by  any  of  them 
until  June. 

Anna  Hoyt  says  she  next  saw  the  will,  meaning  the  enve- 
lope, after  its  execution,  in  Mr.  Hoyt's  desk,  and  recognized 
it  when  it  was  taken  from  the  envelope  and  opened  accord- 
ing to  the  directions  on  the  envelope.  When  she  first  saw 
it  in  her  father's  desk  it  was  enveloped,  and  had  written  on 
it  "Jonathan  M.  Meeker's  will,"  and  the  time  it  was  to  be 
opened.  The  envelope  being  shown  her,  she  recognized  it  as- 
the  same.  Ten  days,  as  she  understood,  after  Mr.  Meeker's 
death  (which  would  be  the  second  of  June)  the  will  was  opened 
and  read  in  the  presence  of  the  witness  and  the  other  mem- 
bers of  Mr.  Hoyt's  family,  at  Mr.  Hoyt's  house,  and  by  him 
— none  but  the  family  being  present.  Witness  looked  at  it — 
cast  her  eye  over  it  at  the  time,  but  did  not  read  it  entirely. 
.She  was  in  the  room  when  it  was  opened,  but  don't  recollect 
seeing  the  seal  broken.  She  never  saw  the  will  from  the 
time  Mr.  Meeker  put  it  in  his  pocket-book  until  she  saw  the 
envelope  in  Mr.  Hoyt's  desk  ;  when  the  envelope  was  removed* 

VOL.  ii.  x 


334  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

from  the  will  she  recognized  it  as  the  same  document  she  had 
witnessed. 

Elizabeth  Hoyt  says  she  knew  the  will  was  in  her  father's 
possession  for  some  months  previous  to  testator's  death — all 
the  family  knew  it.  She  had  seen  it  in  the  envelope  (that  is 
she  had  seen  the  envelope).  She  recognized  the  envelope 
shown  to  her.  It  was  among  her  father's  papers,  and  she  had 
seen  it  whenever  she  arranged  them.  That  her  father  was 
about  taking  it  with  him  to  Mr.  Meeker's  funeral  to  give  it 
to  Mrs.  Meeker,  but  being  reminded  of  testator's  directions, 
he  changed  his  mind.  That  six,  seven,  or  perhaps  ten  days 
after  the  decease,  her  father  broke  the  envelope  in  witness's 
presence  and  read  the  will,  and  said  he  was  going  to  take  it 
to  the  surrogate,  and  requested  witness  to  write  to  Mrs. 
Meeker  informing  her  of  the  fact,  which  she  did.  It  was  the 
same  will  she  had  seen  executed. 

Mrs.  Maria  L.  Hoyt  says  she  saw  the  envelope,  in  which 
the  will  was,  several  weeks  after  the  execution,  with  Mr. 
Hoyt's  papers.  She  identifies  the  will  produced  as  the  one 
she  saw  executed,  and  thinks  the  envelope  is  the  same. 
When  she  saw  the  envelope  it  was  sealed.  Thinks  it  was 
opened  and  read  at  her  house  on  the  day  it  was  taken  to  the 
surrogate's  office.  As  far  as  she  heard  and  recollects  the 
contents  of  the  will,  they  are  the  same  as  read  by  the  testa- 
tor at  the  time  of  the  execution.  Upon  reading  the  will 
now,  witness  has  no  doubt  it  is  the  same  read  at  her  house. 
She  says  she  recollects,  and  gives  the  reasons  why  she  recol- 
lects, several  of  the  bequests  mentioned. 

Mary  E.  Hoyt  says  she  should  think,  from  the  appearance, 
this  is  the  same  paper — the  same  handwriting  in  the  body 
of  it.  She  saw  the  will  taken  from  the  envelope,  eight  or 
ten  days  after  Mr.  Meeker's  death,  by  her  father,  and  heard 
him  read  it.  Its  contents  appeared  the  same  that  testator 
read.  She  had  seen  the  envelope  once  in  her  father's  drawer. 
She  saw  the  seal  of  the  envelope  broken. 

This  is,  in  substance,  all  the  direct  evidence  we  have  in 
relation  to  the  question  of  the  identity  of  this  paper  with 


FEBRUARY  TERM,  1854.  335 

Boylan  v.  Meeker. 

that  which  was  executed  by  the  testator  at  Mr.  Hoyt's,  and 
which  at  the  time  he  took  away  with  him.  I  have  already 
said  that  no  witness  but  Mr.  Hoyt  himself  proves  the  fact  of 
the  testator's  returning  the  paper  to  him — all  that  the  other 
witnesses  know  is,  that  they  saw  an  envelope  afterwards 
among  Mr.  Hoyt's  papers,  which,  as  they  understood  and 
believed,  contained  that  paper,  and  that  when,  after  the  tes- 
tator's death,  Mr.  Hoyt  broke  the  seal  of  this  envelope,  and 
exhibited  the  paper  it  contained,  and  read  it  to  the  members 
of  his  family,  they  believed  it  to  be  the  same  paper — and 
they  certainly  speak  with  confidence  as  to  its  being  the  same 
paper.  A  period  of  nearly  five  months  had  however  elapsed 
since  they  had  seen  the  will  executed. 

We  are  then  to  consider  the  evidence  produced  on  the 
part  of  the  caveators  below  in  opposition  to  the  conclusion 
that  this  paper  is  the  last  will  of  the  testator. 

1.  And  first,  it  is  insisted  that  the  place  where  this  will  is 
alleged  to  have  been  deposited,  and  from  whence  it  is  pro- 
duced, is  calculated  to  cause  suspicion.  It  was  never  seen 
or  heard  of  by  anybody  out  of  the  Hoyt  family,  as  far  as  is 
certainly  known,  until  several  days  after  the  testator's  death. 
No  one  but  Jonathan  E.  Hoyt  testifies  to  having  seen  this 
paper  between  the  12th  of  January  and  the  1st  of  June.  It  is 
then  produced  by  Mr.  Hoyt  as  the  will  executed  by  the  tes- 
tator at  his  house,  in  the  presence  of  himself,  his  wife,  and 
three  daughters,  on  the  night  of  the  day  it  bears  date.  And 
why  should  this  paper  have  been  deposited  with  Ifoyt,  is  sig- 
nificantly asked.  There  is  certainly  nothing  in  the  cause  to 
induce  the  belief  that  the  deceased  was  particularly  intimate 
with  Mr.  Hoyt,  and  there  is  some  testimony  to  show  that  he 
distrusted  him.  It  seems  that,  on  one  occasion,  Hoyt  had 
proposed  to  lend  deceased  a  large  sum  of  money  at  a  low 
rate  of  interest — afterwards  offered  to  lend  him  $1000  with- 
out interest  for  a  year,  and  it  ended  in  his  handing  deceased 
$30,  for  which  he,  Hoyt,  took  his  note;  that  Hoyt  also  bought 
a  cow  of  deceased  for  $27,  took  a  bill  of  sale,  gave  his  note 
for  the  money,  and  left  the  cow,  and  deceased  became  suspi- 


336  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

cious  that  there  was  some  design  in  thus  obtaining  his  note 
and  bill  of  sale,  and  became  anxious  to  get  up  his  paper  from 
Hoyt — refused  to  lend  him  money,  and  wrote  to  Jonathan 
M.  Meeker  to  go  with  him  to  Hoyt's  on  the  27th  December, 
1851,  and  "try  to  settle  my  business  with  him,"  as  he  ex- 
pressed it.  It  seems  that  deceased  did  go  there  about  that 
time,  and  stayed  all  night  and  part  of  next  day  without  see- 
ing Mr.  Hoyt,  who  was  from  home;  that  on  the  10th  of  Jan- 
uary, he  sent  Hoyt's  note  to  his  house  by  Mr.  Wilcox,  with  a 
request  to  have  his  own  note  in  exchange,  but  Wilcox  found 
Mr.  Hoyt  was  absent,  and  returned  the  note  to  him,  as  he 
thinks,  the  next  Monday,  but  is  not  sure  it  was  the  12th  ;  and 
it  is  argued  that  deceased  would  scarcely  have  trusted  Mr. 
Hoyt  with  the  custody  of  his  will,  if  he  was  so  suspicious  of 
his  character  as  to  be  afraid  to  trust  him  with  papers  that  had 
his  signature. 

2.  In  the  second  place,  it  is  insisted  that  the  conduct  of 
J.  Edwards  Iloyt,  before,  at  the  time,  and  after  the  alleged 
execution  of  the  will,  furnishes  ground  for  just  suspicion  of 
fraud ;  that  his  gratuitous  offers  to  lend  Mr.  Meeker  large 
sums  of  money,  his  getting  his  note  for  $30,  and  a  bill  of  sale 
of  a  cow,  which  he  did  not  eventually  take  away,  were 
schemes  to  win  the  deceased's  confidence  and  get  his  signa- 
tures. It  appears,  by  Mr.  Hoyt's  testimony,  that  he  spent  a 
night  at  the  deceased's  in  March,  1852,  and  on  that  occasion, 
he  says,  the  deceased  took  him  into  a  room,  and  read  parts  of 
several  old  wills  he  had  made,  and  that  Hoyt  then  prepared  a 
new  will  for  him,  and  this,  counsel  insist,  was  contrived  by 
Hoyt,  and  is  another  link  in  the  chain  of  evidence  to  prove 
that  he  was  possessing  himself  with  the  materials  out  of  which 
to  make  a  surreptitious  will. 

Again,  it  is  proved  that,  in  the  winter  of  1851-2,  Mr. 
Hoyt  applied  to  Murray,  assessor  of  one  of  the  Newark 
wards,  to  find  out,  as  he  said,  the  value  of  the  testator's  pro- 
perty in  that  ward,  and  obtained  from  him  a  statement  of  all 
his  real  property  in  Newark,  with  its  location  and  character. 
This  is  adduced  as  another  link  in  the  same  chain.  And,  as 


FEBRUARY  TERM,  1854.  337 

Boylan  ».  Meeker. 

• 

it  appears  that  the  deceased  had  once  offered  to  sell  Hoyt 
his  Ohio  lands,  and  Hoyt  knew  what  his  real  estate  in  New 
Providence  consisted  of;  that  with  this  information  from 
Murray,  he  was  in  possession  of  knowledge  of  all  the  real 
estate  of  the  deceased  which  is  mentioned  in  the  will  of 
January  12th. 

Then  we  have  the  evidence  of  Mr.  Carr,  that  about  the 
10th  of  March,  1852,  he  saw  a  paper  in  Mr.  D.  K.  Boylan's 
office  in  Newark,  endorsed  "Jonathan  M.  Meeker's  will;" 
that  he  opened  it,  and  read  the  commencement,  "  In  the  name 
of  God,  amen.  I,  Jonathan  M.  Meeker,  of  the  township  of 
New  Providence,"  &c. ;  that  Boylan  and  Hoyt  came  in  ;  Boy- 
lan took  the  paper,  and  went,  or  said  he  was  going  to  New 
York,  and  he  and  Hoyt  went  out  together.  Carr's  charac- 
ter is  assailed,  but  Mr.  Samuel  Wilcox  testifies  that  he  men- 
tioned this  circumstance  to  him  soon  after.  Again,  Mr. 
Hoyt  admits  he  had  made  inquiry  as  to  whether  Boylan's 
word  could  be  relied  on — thinks  it  was  after  testator's  death ; 
but  gives  a  singular  reason  for  doing  so,  to  wit,  that  Mr. 
Meeker  had  remarked  to  him,  at  the  execution  of  the  will  or 
after,  that  Mr.  Boylan,  being  executor,  would  have  to  get  some 
one  to  give  bonds  for  him,  and  asked  him,  Hoyt,  if  he  would 
do  it,  and  that  Boylan  had  applied  to  him,  as  he  supposed, 
for  the  same  purpose ;  whereas  both  Meeker  and  Boylan 
must  have  known  that  executors  are  not  required  to  give 
bonds. 

Again,  Mr.  Hoyt  states,  in  his  testimony,  that  he  never  in- 
formed Mr.  Boylan  of  the  existence  of  this  will  previous  to  the 
eleventh  day  after  testator's  death,  and  yet  Mr.  Parsons  tes- 
tifies that,  in  less  than  a  week  after  Meeker's  death,  Mr.  Boy- 
lan came  to  the  surrogate's  office,  informed  him  of  Meeker's 
death,  inquired  when  caveats  must  be  filed,  and  said  he  was 
an  executor  in  Meeker's  will ;  though  he  had  been  at  the  fu- 
neral, heard  the  September  will  read,  and  therefore  knew  he 
was  not  an  executor  in  that  will.  Some  stress  is  laid,  too, 
upon  another  fact.  The  testator  died  on  the  22d  of  May. 
On  the  morning  of  that  day,  Hoyt  says  he  was  in  Newark, 


338  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

on  his  way  to  New  York,  and  met  Boylan,  who  told  him  Mr. 
Meeker  had  been  quite  sick,  and  made  an  appointment  with 
him  to  call  at  his,  Hoyt's,  house  that  evening,  on  his  return 
from  New  York,  and  take  him  up  to  Meeker's.  Boylan  did 
call,  according  to  appointment,  and  Hoyt  went  with  him  to 
Meeker's,  and  found  him  dead.  Vanderveer  testifies  that, 
on  that  day,  Boylan  hired  a  wagon  of  him  to  go  to  Daniel 
Pearson's;  that  he  did  not  return  until  about  two  o'clock  at 
night — and  told  him  subsequently,  that  on  his  way  to  Pear- 
son's, where  he  was  going  to  a  party,  he  met  a  messenger, 
who  told  him  Mr.  Meeker  was  very  low,  and  was  not  ex- 
pected to  live,  and  he  went  there.  The  fact  is  there  was  no 
party  at  Pearson's  that  night,  and  the  wagon  was  undoubtedly 
hired  to  go  to  Meeker's,  according  to  the  appointment  made 
with  Hoyt.  Why,  it  is  asked,  is  this  equivocation — why  does 
Mr.  Boylan  conceal,  on  the  22d,  the  fact  that  he  is  going  to 
Meeker's?  Why  does  he  arrange  with  Hoyt  to  go  with  him, 
if  he  at  the  time  knew  nothing  of  this  paper  ?  Mr.  Hoyt 
had  the  will  in  his  pocket,  as  he  says,  at  this  visit,  and  went, 
intending  to  get  rid  of  it,  but  finding  Mr.  Meeker  dead,  he 
took  it  back  with  him,  saying  nothing  to  Mr.  Boylan  about  it. 

3.  In  the  third  place,  it  is  urged  that  suspicion  attaches 
to  Um  paper  itself.  It  has  never  been  discovered  who  pre- 
pared it — it  is  in  a  handwriting  unknown  ;  some  of  the  wit- 
nesses present  at  the  execution  testify  that  the  testator  said 
he  had  it  drawn  in  New  York  or  Newark,  but  though  the 
question  of  probate  was  in  litigation  for  a  year  before  the 
Orphans  Court  at  Newark,  and  the  testimony  of  the  drafts- 
man would  have  been  of  vital  importance — probably  abso- 
lutely decisive — he  has  not  been  found,  nor  does  it  appear 
that  any  effort  was  made  to  find  him. 

Again,  it  is  in  evidence  that  the  deceased  had  drawn  seve- 
ral previous  wills  himself,  some  of  which  are  produced,  and 
yet,  excepting  the  name,  "  Jonathan  M.  Meeker,"  signed  at 
the  foot  and  on  the  margin  of  the  three  half  sheets  which 
compose  it,  there  is  not  a  word  in  or  about  this  paper  which 
is  pretended  to  be  in  decedent's  handwriting.  There  is  a 


FEBRUARY  TERM,  1854.  339 

Boylan  v.  Meeker. 

contrariety  of  evidence  as  to  the  genuineness  of  the  signa- 
tures of  the  deceased's  name — they  are  made  better  than 
he  usually  wrote  in  the  latter  part  of  his  life — but  it  is  im- 
possible to  say  with  certainty,  upon  the  evidence  or  upon 
inspection,  whether  they  are  genuine  or  not.  I  pass  by  two 
or  three  slight  alterations  apparent  on  the  face  of  the  paper. 
I  do  not  see  that  anything  can  be  inferred  from  them  which 
will  very  materially  affect  this  question.  There  is  one  name 
in  it — Halsey  Meeker — which  in  all  the  other  wills  is  written 
Caleb  H.  Meeker ;  but  if  the  January  will  was  written  from 
the  dictation  of  the  deceased  by  a  stranger  this  error  may 
readily  have  occurred,  as  the  deceased  sometimes  called  him 
Halsey — and  the  same  remark  may  be  made  as  to  the  altera- 
tions apparent. 

4.  In  the  fourth  place,  after  the  death  of  the  testator,  a 
will,  drawn  by  himself,  attested  the  25th  September,  1851, 
and  duly  executed,  was  found  uncancelled  in  the  testator's 
desk  at  his  dwelling-house.  It  is  written  on  twelve  pages 
of  foolscap — manifestly  prepared  with  great  labor  and  care. 
All  the  wills  previously  made  were  either  destroyed,  can- 
celled, or  mutilated,  showing  testator's  habit  when  he  made 
a  new  will.  This  will  was  executed  less  than  four  months 
prior  to  the  date  of  the  paper  offered  for  probate.  It  makes 
several  very  different  dispositions  of  the  testator's  property 
from  this,  showing,  if  this  will  be  genuine,  that  the  deceased's 
mind  had  undergone,  in  that  short  period  of  time,  a  change, 
in  this  respect,  to  certainly  a  remarkable  extent.  For  ex- 
ample : 

1.  The  September  will  gives  Mrs.  Meeker,  his  widow,  his 
farm  and  forty  acres  of  woodland,  stock  and  furniture  for  life, 
$1000  in  cash,  and  $400  a  year,  in  lieu  of  dower.     In  this 
paper  she  has  the  farm,  stock,  furniture,  &c.,  absolutely,  and 
$4000  in  cash,  without  barring  her  dower. 

2.  The  September  will  gives  his  nephew,  Jonathan  M.  Muir, 
the  above  farm  and  land,  after  his  widow's  death,  for  his  life, 
then  to  his  children,  &c.     In  this  paper  he  has  a  house  and 
lot  in  Newark  and  $1000,  Ac. 


340  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

3.  The  September  will  gives  John  Meeker,  Deborah  Hand, 
Daniel  H.  Meeker,  Isaac  Meeker,  Theodore  and  Joseph  Wil- 
cox,  Josiah  F.  Muir,  Caleb  M.  Muir,  Jonathan  M.  Noe,  Jona- 
than M.  Pierson,  Jonathan  M.  Fisher,  Deborali  Muir,  and 
Mary  Muir,  each,  specific  legacies.     In  this  paper  they  are  not 
mentioned  by  name  at  all. 

4.  In  the  September  will,  eighteen  lots  of  land  and  $5000, 
and  the  interest  of  $5000  more,  are  given  for  the  Meeker 
Seminary.     In  this  paper  he  is  made  to  say  he  has  changed 
his  mind,  and  gives  nothing  for  such  an  institution. 

5.  In  this  paper  $500  is  given  to  A.  C.  M.  Pennington, 
$500  to  O.  S.  Halsted,  jun.,  $300  to  Richard  Townley,  $1000 
to  the  Methodist  Church  at  New  Providence,  $500  to  the  Cen- 
tral Methodist  Church  at  Newark,  and  property,  variously 
estimated  at  from  $12,500  to  $20,000,  to  D.  K.  Boylan,  none 
of  which  legacies  are  found  in  the  September  will. 

6.  In  the  September  will,  his  widow,  James  T.  Meeker, 
Jonathan  M.  Muir,  and  Isaac  Meeker,  jun.,  are  executors. 
In  this  paper  D.  K.  Boylan  and  the  widow  are  executors. 

7.  The  September  will  goes  into  great  detail,  contains  nu- 
merous directions  to  his  executors,  advice  to  his  legatees,  and 
couples  many  of  the  legacies  with  limitations  and  conditions, 
and  I  believe  mentions  every  piece  of  property  he  owned. 
This  paper  contains  nothing  of  this  kind,  except  a  desire 
that  his  widow  should  occupy  the  homestead,  &c.,  and  omits 
entirely  the  Morris  county  land.     No  one  can  read  these  two 
instruments  without  being  forcibly  struck  with  this  differ- 
ence.    Not  a  trace  of  the  peculiarities  of  mind,  which  appear 
on  every  page  and  in  almost  every  line  of  the  September 
•will,  is  to  be  discovered  in  the  paper  here  produced.     And 
the  same  striking  dissimilarity  is  apparent  between  this  pa- 
per and  all  the  previous  wills  drawn  by  or  for  the  testator. 
It  is  a  fact,  however,  to  be  remembered  in  this  connection, 
that  the  testimony  of  the  ladies  of  Mr.  Hoyt's  family  shows 
that  several  of  these  dispositions  were  contained  in  the  will 
executed  in  January. 

8.  Again,  it  is  argued  that  the  January  will  is  an  un- 


FEBRUARY  TERM,  1854. 


341 


Boylan  v.  Meeker. 


natural  will,  inasmuch  as  it  diverts  a  large  proportion  of  the 
estate  from  the  blood  relations  of  the  testator,  contrary  to 
the  long  settled  intention  of  the  testator,  as  indicated  by 
former  wills.  This  paper,  when  compared  with  three  former 
wills,  one  in  1846,  one  in  1848,  and  the  September  will  of 
1851,  to  some  extent  furnishes  ground  for  the  argument,  but 
there  is  not  much  substance  in  this  objection  when  examined 
closely.  The  legacy  to  Boylan  is  probably  not  much  greater 
or  less  in  value  than  that  in  the  other  three  wills  given  to 
found  the  Meeker  Institute,  and  the  January  will  does  not 
give  a  greater  proportion  of  the  estate  to  strangers,  including 
charities  and  to  Mrs.  Meeker  and  her  relations,  than  some  of 
the  other  wills ;  for  it  is  important  to  remember  here,  that 
though  this  paper  omits  to  mention  most  of  the  testator's 
nephews  and  nieces  by  name,  and  gives  them  no  specific  lega- 
cies, yet  the  entire  residue  of  the  testator's  estate,  which  he 
says  will  amount  to  a  very  large  sum,  is  given  to  those  of 
them  who  are  not  otherwise  provided  for  in  the  will.  A 
tabular  statement  of  the  dispositions  of  the  four  wills  will 
show  at  one  view  how  the  facts  are.  I  give  merely  the  sub- 
stance of  the  different  bequests  and  .devises,  omitting  de- 
scriptions, values,  conditions,  and  limitations  annexed  to 
them,  &c. 


Legatees. 

Meeker    blond,    princi- 
pally    nephews    aud 
aieccs  of  testator. 

Will  of  1846. 

Will  of  1848. 

Will  of  Sept., 
1851., 

Will  of  Jan'y, 
1852. 

Jno  Meeker  .  .. 

House  and  lot 

House  and  lot 

$500  
$100  a  year... 

House  and  lot 
and  $3000... 
House  and  lot 
and  $2000... 
$2500  
Farm  

House  and  lot 

House  and  lot 

$500  
Int.  of  $2000, 

Ohio  farm  
House  and  lot 

Deb   Hand  

Daniel  H.  Meeker 
Phoebe  Koberts.... 

Abij.  Pierson  
C.  H.  Meeker  

in^of  $2000. 
Ohio  farm  

House,  lot,  & 

$500. 

Ohio  farm  

House  and  lot 
$100  

Ohio  farm  & 
$6000  

House,  lot,  & 
$2000  

Fred.  Meeker  
Jona.  M.  Meeker.. 
Isaac  Meeker,  ne- 

House  &  lots, 
Land,  23  a., 

House,   store, 
&$3000  

Lots  &  $2000. 

House  and  lot 
Lots  as  before 

House,  lot,  & 
$2000. 

342 


PREROGATIVE  COURT. 


Boylan  v.  Meeker. 


Legatees. 

Will  of  1846. 

Will  of  1848. 

WiU  of  Sept., 
1851. 

WiU  of  Jan'y, 
1852. 

Theodore  and  Jos. 

A\~;  i  ,    , 

House  and  lot 
Farm  at  N.  P., 

If  ouse,  lot,  & 

«M  AftA 

House  and  lot 

Farm  at  N.  P., 
after  widow's 
dec.,&$2000, 
and  40  a.  lot, 
$1000  

House  &  store 
House  and  lot 
House  and  lot 

Jona.  M.  Muir  

Josiah  F.  Muir.... 
Caleb  Muir  

House,  lot,  & 
$5000  

House,  lot,  & 
$1000. 

$1000  
House  &  store 
House,  lots,  & 

$4000  
House,    store 
&$2000  
House,  lot,  & 
$1000  
House,  lot,  & 

Deb.  Muir  

Mary  Muir  

$21)0  

House,  lots,  & 

Albert  Meeker  
Jona.  M.  Noe  

Jona.  M.  Pierson, 
Jon.  M.  Fisher.... 
I.     Meeker,    bro- 

$1UUU   

Lots  of  land.. 

Lot  
6  acres  

Lot  of  land... 
Lot  

40  a.  in  Mor- 
ris CO  

10  acres  

7  acres  

$3000  

ther  
Jas.  F.  Meeker,  of 
Elizabethtown  .. 

Mrs.   Meeker    and 
hei-  blood. 

The  widow  

$500. 

Farm  at  N.  P. 
and  $4000. 

House  in  New 
ark  and  $400 
per  annum... 

Farm  at  N.  P. 
&$5000  

Farm  at  N.  P. 
for  life,  40  a. 
lot,  $400  per 
an.,  &  $1000, 

Rich'd  Crane  
David  A.  Crane... 
Jos.  W.  Crane  
Jon.  T.  Crane  
Agnes  Tully  

House  and  lot 

$1000. 

Clark     Townley's 

60  acres  

children  
Harriet  Crane  
IwicliM  Townley... 

$200  

$200  
$500  



$3067" 
Int.  of  $500. 

To  strangers. 
The  girl  Violette, 
A.  Whitehead,  for 

House  and  lot 
and  $150  

$1500  

House  and  25 
acres  

House,  lot,  & 
$200  

services  
David      Johnson, 
son  of  J.  A.  J... 
Jno.  A.  Johnson.. 
A.  C.  M.  Penn  ing- 

$500  

$500. 
$500. 

$500. 
$500. 

Property  In  New- 
nrk,    eftllm.itrd 
at  from  ggls/iOO 
to  $20,000. 

ton  
O.  S.  Halstedjun. 

D.  K.  Boylan  

FEBRUARY  TERM,  1854. 


343 


Boylan  v.  Meeker. 


Legatees. 

Will  of  1846. 

Will  of  1848. 

Will  of  Sept., 
1851. 

Will  of  Jan'y, 
1852. 

Charities. 

Franklin   st.  Ch., 
Newark. 

Meeker  Institute, 
Pres.  Ch.,  N.  P... 

$300  

$200  

Land  &  $10,- 
000  

Land  &  $10,- 
000  
$1000  

Land  &  $10,- 
000  

Meth  Ch    N  P... 

$1000  

$1000. 
$500. 

Testator's    nieces 
and  nephews  not 
before   provided 
for  In  the  will. 

Cent.   Meth.   Ch., 

Newark  
Residue  

Testator's    nieces 
and  nephews. 

Testator's   nieces 
and  nephews  and 
some  relatives  of 
Mrs.  M  

Nieces    and     ne- 
phews of  testator 
and  his  wife  

It  will  be  seen,  by  examining  this  statement,  that  the 
legacy  given  to  David  Johnson,  by  the  will  of  1848,  is  given 
to  his  father  in  this  paper;  that,  witli  this  exception,  the 
only  legatees  in  this  paper,  not  mentioned  in  any  of  the  for- 
mer wills,  are  A.  C.  M.  Pennington,  O.  S.  Halsted,  jun., 
Isaac  Miller,  and  D.  K.  Boylan,  and  the  Central  Methodist 
Church  at  Newark ;  that  while  many  of  the  nephews  and 
nieces  of  the  testator,  who  were  specifically  remembered  in 
some  of  the  former  wills,  are  not  named  in  this  document, 
yet  that  the  whole  residue  is  left  to  them,  to  the  exclusion  of 
Mrs.  Meeker's  blood,  and  that,  judging  from  the  bequests  of 
this  paper  compared  with  former  wills,  the  residue  to  be  di- 
vided will  be  larger  under  this  than  it  would  have  been 
under  either  of  them.  The  Meeker  Seminary,  Jonathan  M. 
Muir,  and  the  relatives  of  Mrs.  Meeker  are  the  principal 
losers,  and  D.  K.  Boylan  the  only  large  gainer  by  this  paper 
produced  as  a  will.  The  bequests  to  particular  friends  in 
this  paper  is  not  a  novelty.  In  the  fragment  of  a  will,  made 
by  the  deceased  in  1834,  he  gives  to  three  sons  of  Mr.  White- 
head  and  one  son  of  Gov.  Penuington  $500  each. 

9.  Again,  it  is  contended  that  the  provisions  of  the  con- 
troverted paper  are  contrary  to  the  expressed  intentions,  mews, 
and  feelings  of  the  deceased  before  the  time  it  bears  date  and 
his  declarations  subsequently  made. 

Evidence  was  admitted  in  the  court  below,  on  both  sides, 
covering  this  ground,  and  I  think  rightly.  The  great  ques- 


344  PREROGATIVE  COURT. 

Boylan  ».  Meeker. 

tion  in  the  cause  is — is  the  will  here  produced  genuine  f  The 
allegation,  substantially,  of  the  caveators  is — that  it  is  not; 
that  it  is  surreptitious  or  procured  by  fraudulent  means ; 
that  the  deceased  never  executed  this  paper  as  his  will.  In 
this  aspect  of  the  case,  I  feel  bound  to  look  into  the  evidence 
in  all  the  phases  in  which  it  was  presented  below. 

And  1.  In  this  paper  produced  for  probate  the  Meeker 
Seminary  is  abandoned.  It  assigns  a  reason  :  "  it  has  always 
been  my  intention,  and  I  have  made  several  wills  to  that 
effect,  to  establish  in  New  Providence  an  institution  of  learn- 
ing, to  be  allied  the  Meeker  Seminary;  but  on  consulting 
with  good  and  judicious  friends,  and  on  further  reflection,  I 
was  advised  to  divide  the  residue  and  remainder  of  my  es- 
tate, which  will  amount  to  a  large  sum,  equally  among  my 
nephews  and  nieces."  Now  no  person  is  produced  with  whom 
deceased  so  consulted. 

Again,  the  project  of  a  seminary  at  New  Providence  had 
been  in  his  mind  for  many  years;  he  spoke  of  it  to  Mr.  Low 
as  early  as  1836  or  8  ;  in  his  wills  of  1846,  1848,  and  1851 
it  occupies  a  prominent  place.  The  deceased,  on  the  5th  of 
May,  1852,  only  seventeen  days  before  his  death,  told  Daniel 
Jarolemau  that  he  had  in  his  will  left  $10,000  for  a  semi- 
nary, to  be  built  in  New  Providence ;  that  he  had  left  it  in 
the  hands  of  trustees,  &c.  On  tiie  23d  or  24th  of  January 
he  told  Mr.  Low  that  he  had  left  $10,000  for  the  seminary ; 
got  a  map,  and  showed  him  where  it  was  to  be  located  ;  it 
was  to  be  called  the  Meeker  Seminary,  and  he  had  appointed 
trustees  for  it — told  who  they  were,  &c.  In  Februaiy,  1852, 
at  Trenton,  he  told  Mr.  Corey  he  had  very  recently  made  a 
will,  and  in  that  will  he  had  appropriated  a  certain  piece  of 
property  for  the  purpose  of  locating  a  seminary,  called  the 
Meeker  Institute  or  Seminary,  saying  he  had  made  certain 
endowments  to  the  amount  of  $10,000.  He  spoke  of  the 
same  thing  to  Johnson  in  April,  1852,  and  to  Noe  about  two 
mouths  before  his  death.  Now  here  are  declarations  of  the 
deceased,  made  subsequent  to  the  date  of  this  paper,  which 


FEBRUARY  TERM,  1854.  345 

Boylan  v.  Meeker. 

if  he  had  executed  such  a  will,  and  had  not  destroyed  it,  can 
be  viewed  in  no  other  light  than  as  deliberate  falsehoods. 

There  is  some  evidence,  on  the  other  side,  that  at  times, 
in  the  summer  or  fall  of  1851,  when  speaking  of  the  appro- 
priation by  the  city  of  his  lands,  he  threw  out  intimations 
that,  in  consequence  of  that  act,  he  intended  to  abandon,  or 
had  abandoned  the  project  of  the  Meeker  Seminary;  but 
this  evidence  is  perfectly  consistent  with  the  supposition  that 
he  did,  in  January,  make  a  will  omitting  that  bequest,  and 
subsequently  changed  his  mind  and  destroyed  it.  But  then, 
again,  there  is  very  conclusive  evidence  of  the  deceased's  re- 
peated recognition  of  the  September  will,  subsequent  to  12th 
January,  1852,  in  other  particulars.  About  the  23d  or  24th 
of  January,  1852,  he  told  Henry  Low,  who  was  on  a  visit 
at  his  house,  that  he  had  made  a  will  last  fall,  as  he  had  told 
him  previously  he  was  going  to  do ;  that  he  had  left  a  house 
and  lot  to  Mrs.  Hand  in  Fair  street — also  one  to  John 
Meeker,  and  entailed  it;  told  him  what  he  had  left  the 
seminary — said  Jonathan  M.  Muir,  Isaac  Meeker,  and  Mrs. 
Meeker  were  his  executors — thought  Muir  would  make  a 
good  executor.  He  told  Corey,  at  Trenton,  in  February, 
1852,  that  he  had  recently  made  a  will — spoke  of  what  he 
had  left  the  seminary  in  it-— spoke  of  the  several  distribu- 
tions of  his  property — said  he  had  made  several  wills  pre- 
vious to  the  last  one,  and  in  this  last  will  he  had  distributed 
his  property  to  his  own  satisfaction,  and  he  doubted  whctJier 
he  should  ever  make  another.  In  a  conversation  with  Lewis 
Clark,  subsequent  to  January  12th,  jie  said  he  had  given 
$10,000  to  build  the  Meeker  Seminary — that  he  had  not 
given  anything  in  his  will  to  the  Methodist  Church  at  New 
Providence;  he  said  he  would  give  something,  and  wished 
witness  to  come  to  his  house  and  prepare  a  codicil  for  that 
purpose.  He  said  he  had  given  Daniel  Meeker  $500 ;  that 
he  had  given  John  Meeker  a  house  and  lot  in  Newark,  and 
Deborali  Hand  a  house  and  lot — think  he  said  he  had  en- 
tailed them.  On  Hay  3cZ,  1852,  Mr.  Clark  went  to  the  de- 


346  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

ceased's  house.  After  a  good  deal  of  conversation  about 
other  matters,  he  asked  Mr.  Clark  if  he  would  act  as  one  of 
his  executors,  if  he  made  him  one;  Clark  asked  who  his 
executors  were,  and  he  said  his  wife  was  executrix,  and 
James  F.  Meeker,  Isaac  Meeker,  jun.,  and  Jonathan  M. 
Muir  were  executors — (these  are  the  executors  named  in  the 
September  will).  Mr.  Clark  declined.  Deceased  asked  Mr. 
Clark  then  if'  he  would  write  an  addition  to  his  Witt — the 
codicil  before  spoken  of  in  favor  of  the  Methodist  Church  at 
New  Providence.  He  got  paper,  ink,  and  pen,  and  the  will, 
or  what  he  said  was  the  will.  Mr.  Clark  asked  him  if  he 
kept  a  will  in  the  house  with  him  ?  He  said  he  had  kept  a 
•will  written  by  him  thirty  years — had  never  been  without  a 
will  in  the  house  for  thirty  years,  as  witness  understood  him. 
Then  he  wished  witness  to  draw  on  paper  his  codicil,  to  see 
if  it  met  his  views.  Then  a  question  arose  about  putting  a 
bequest  of  $500  from  his  wife,  in  addition  to  one  of  $1000 
from  himself,  in  the  codicil,  and  the  matter  was  postponed. 
Now  this  is  an  extraordinary  fact.  The  will  the  testator 
produced,  and  to  which  the  codicil  was  to  be  appended,  was 
clearly  not  the  paper  we  have  here ;  for  this  paper,  at  that 
time,  on  the  3d  of  May,  1852,  was,  according  to  the  testi- 
mony of  all  the  Hoyt  family,  lying  sealed  up  in  the  envelope 
among  Mr.  Hoyt's  papers  at  Hoyt's  house.  This  paper  ap- 
points different  persons  from  those  named  to  Mr.  Clark  by 
the  testator  as  his  executors,  and  this  paper  contains  a  be- 
quest of  $1000  to  the  very  church  at  New  Providence  which 
it  was  the  object  of  the  proposed  codicil  to  make. 

Again,  on  the  15th  of  January,  only  three  days  after  the 
date  of  this  paper,  the  deceased  told  Mr.  Brokaw  that  he 
had  left  Jonathan  M.  Muir  the  homestead  farm,  seventy 
acres  of  land  on  Stony-hill,  and  $2000.  He  told  Valentine, 
the  last  of  February,  1852,  that  he  had  given  Isaac  Meeker, 
jun.,  the  lots  (mentioned  in  September  will),  and  how  he  had 
provided  for  and  endowed  the  Meeker  Seminary  (as  in  that 
will),  and  he  repeated  to  him,  in  March,  the  gift  to  Isaac. 
Mr.  Potter  savs  he  has  heard  testator  mention  the  Irgacy  to 


FEBRUAEY  TERM,  1854.  347 

Boylan  v.  Meeker. 

the  Meeker  Seminary  as  late  as  within  two  months  of  his 
death.  He  told  Linabeny,  about  the  first  of  April,  1852, 
that  he  had  willed  a  store  and  house  to  Caleb  H.  Muir.  He 
said  to  S.  Wilcox,  in  April,  1852,  that  he  intended  the  lot 
the  city  of  Newark  was  taking  to  raise  funds  to  build  a 
seminary  at  New  Providence,  that  he  had  intended,  or  had 
left  it  by  his  will,  and  that  he  had  given  his,  witness',  bro- 
thers, two  boys,  a  house  in  Newark,  &c.  He  told  Mr.  Searles, 
since  January  12th,  1852,  that  he  had  given  Jonathan  M, 
Muir  the  homestead,  and  told  Mr.  Noe,  in  March,  1852,  that 
he  had  left  a  legacy  to  Isaac  Meeker,  jun.  On  the  18th  of 
February,  1852,  he  wrote  to  Mr.  J.  T.  Crane  that  he  had  set 
forth  in  his  petition  to  the  Newark  council,  (dated  in  August, 
1851,)  that  he  had  ordered  the  property  they  were  about  to 
take  to  be  sold,  and  the  money  appropriated  to  the  erection 
and  support  of  a  school.  On  the  8th  of  March,  1852,  he 
wrote  the  same  in  substance  to  Mr.  Clark.  On  the  15th 
March,  1852,  he  writes  to  Mr.  Crane,  that  if  the  law  autho- 
rizing the  city  of  Newark  to  take  his  land  is  not  repealed,  it 
will  prevent  his  building  a  seminary.  And  on  the  12th  April, 
1852,  he  writes  to  Bishop  Janes,  then  presiding  over  the 
Methodist  Conference  at  Trenton,  and  asks  the  appointment 
of  Mr.  Murcle  to  the  Methodist  Church  at  New  Providence, 
and  of  Mr.  Tully  as  presiding  elder,  promising,  if  these  ap- 
pointments are  made,  to  give  $1500,  &c.,  towards  building  a 
brick  church  there,  and  giving  the  bishop  an  account  of  his 
intention  and  plans  in  reference  to  the  seminary.  All  these 
declarations  and  acts  of  the  deceased,  made  and  done  subse- 
quent to  the  12th  January,  1852,  the  date  of  the  contested 
will,  go  to  show,  if  the  deceased  was  sincere  in  what  he  said 
and  did,  that  he  knew  of  no  will  but  that  of  September. 
Then— 

3.  The  devise  to  Boylan.  The  deceased  had,  in  1851,  conveyed 
a  lot  in  Newark  to  Boylan,  under  an  agreement  that  Boylan 
should  do  all  his  legal  business — so  that  he  was  under  no 
obligations  to  Boylan.  Mr.  Runyon  says  that,  on  the  second 
of  January,  1852,  deceased  came  to  him  to  get  a  brief  prepared, 


348  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

to  be  used  before  the  common  council  in  opposing  the  project 
of  taking  his  land  for  a  park;  that  he,  Runyon,  suggested 
to  him  to  get  Boylan  to  prepare  it,  and  his  reply  was,  "I 
won't;  Boylan  is  a  d — d  rascal;  I  have  no  confidence  in 
him ;  I  believe  nothing  would  suit  him  better  than  for  the 
city  to  take  the  property,  so  that  he  could  get  the  money 
for  the  lot  I  have  given  him,  and  put  it  in  his  pocket." 
Subsequently  he  used,  on  another  occasion,  similar  language 
in  regard  to  Mr.  Boylan.  The  first  conversation,  it  will 
be  seen,  is  only  ten  days  prior  to  the  date  of  the  January 
will,  and  the  second,  Runyon  thinks  was  about  two  weeks 
after,  which  would  be  very  near  the  32th  January.  He 
told  Col.  Plume,  about  the  middle  of  January,  1852,  he 
tli inks,  that  he  had  lost  all  confidence  in  Boylan,  and  that 
he  believed  he  would  cheat  him  out  of  all  his  property  if 
he  could ;  that  he  was  a  great  rascal — linked  in  with  the 
city.  [It  may  be  stated  in  this  connection,  as  a  singular 
contradiction  in  the  evidence,  which  can  only  be  reconciled 
on  the  theory  that  some  such  will  had  been  made  and  de- 
stroyed, that  about  the  13th,  probably  the  very  day  after 
the  Hoyt  will  is  dated,  when  the  deceased  was  undoubtedly 
in  Newark,  Mary  J.  Trimble  says  the  deceased  told  her,  at 
Boylan's  office,  that  "  he  had  left  Boylan  the  property  the 
city  wanted  to  rob  him  of,  and  that  was  not  all  he  had 
left  him ;  that  he  wished  Boylan  to  know  all  about  his 
business,  for  he  would  have  to  settle  it  up  after  his  death/'] 
Mr.  Keys  says  that  deceased  told  him,  in  February,  1852, 
that  a  lawyer,  he  thinks  he  called  him  Bowling  or  Boiling, 
and  the  corporation  (of  Newark)  were  concocting  to  swindle 
him  out  of  the  property.  He  told  Joseph  C.  Noe,  about 
the  middle  of  February,  1852,  that  the  city  of  Newark  was 
trying  to  take  a  piece  of  land  from  him  for  a  public  park, 
and  he  had  got  Mr.  Boylan  to  intercede  for  him ;  but  in- 
stead of  doing  that  he  was  working  against  him,  and  he  be- 
lieved him  to  be  a  damned  rascal,  or  scoundrel,  and  he  would 
not  trust  him  with  a  dog's  dinner.  In  the  latter  part  of 
April,  or  the  first  of  May,  he  spoke  verv  much  in  the  same 


FEBRUARY  TERM,  1854.  349 

Boylan  v.  Meeker. 

way  of  Mr.  Boylan  to  Henry  Low.  He  told  Mr.  Corey,  at 
Trenton,  in  February,  1852,  that  he  had  no  confidence  in 
Boylan — told  about  his  giving  him  a  lot,  and  that  his  design 
in  doing  so  was  that  Boylan  should  assist  in  fighting  the  com- 
mon council,  but  he  had  become  satisfied  that  Boylan  was 
operating  against  him  secretly  in  favor  of  the  city  ;  said  he 
did  not  care  about  offending  Boylan  until  he  had  got  his  busi- 
ness settled  up  Avitli  him,  which  he  intended  as  soon  as  pos- 
sible; and  he  intended  to  take  his  business  out  of  his  hands; 
and  he  expressed  his  distrust  of  Mr.  Boylan  to  Mr.  Hull  in 
the  winter  of  1851-2. 

There  is  a  good  deal  of  evidence,  however,  that  his  opinion 
of  Mr.  Boylan  underwent  frequent  changes,  and  that  the  idea 
of  leaving  the  park  property  to  him  to  fight  the  city  with 
had  been  in  his  mind.  I  do  not  attach  any  importance  to 
the  fact,  that  he  continued  up  to  his  death  to  employ  Boy- 
lan professionally,  for  he  had  already  paid  him  for  these 
services  by  conveying  some  property  to  him,  and  it  was  quite 
natural  that  he  should  go  to  him,  even  though  he  doubted 
or  disliked  him.  But  Mr.  Harriot  speaks  of  a  conversation, 
in  November  or  December,  1851,  in  which  deceased  said  he 
was  going  to  leave  Boylan  part  of  his  property  to  carry  on 
the  suit  with  the  city.  Several  other  witnesses  are  pro- 
duced who  heard  the  deceased,  in  the  winter  of  1851-2,  or 
spring  of  1852,  speak  favorably  of  Mr.  Boylan  as  his  friend, 
as  having  done  his  business  satisfactorily — and  mention  Boy- 
lan's  family  in  terms  which  indicated  that  he  was  pleased 
with  them.  This  evidence,  in  connection  with  Mrs.  Trimble's, 
goes  in  corroboration  of  the  testimony  as  to  the  actual  exe- 
cution of  a  will  at  Hoyt's  in  which  Boylan  had  an  interest,, 
but  it  also  indicates  that  the  devise  to  him  had  a  specific 
purpose,  to  wit,  the  resistance  of  the  attempt  of  the  city  of 
Newark  to  take  his  property  for  a  park.  But  there  is  not 
in  it  that  which,  in  the  face  of  the  conflicting  testimony,  sat- 
isfies my  mind  that  the  deceased,  on  the  12th  January,  made, 
in  substance,  an  unconditional  and  absolute  devise  of  so  large 

VOL.  ii.  Y 


350  PREROGATIVE  COURT. 

Boy  Ian  t>.  Meeker. 

an  amount  to  Mr.  Boylan,  and  adhered  to  it  up  to  the  day  of 
his  death. 

Nor,  upon  the  most  careful  examination  of  the  evidence, 
am  I  able  to  see  that  the  attempt  to  prove  a  clear  recognition 
by  him  of  the  will  of  January  12th  as  an  existing  will  has 
been  successful.  It  is  said  this  may  he  accounted  for  upon 
the  testimony  of  the  Hoyts  that  the  deceased  desired  the  will 
to  be  a  secret.  But  the  will,  according  to  the  witnesses  at 
Hoyt's,  was  not  intended  to  be  so  very  secret.  It  was  exe- 
cuted, they  say,  in  the  presence  of  five  persons,  two  only  being 
necessary ;  the  will  was  read  over  to  them  all,  which  was  quite 
unnecessary,  and  the  deceased  took  it  away  to  show  to  friends. 
True,  Mr.  Nichols  testifies  that  deceased  told  him,  in  Febru- 
ary, 1852,  that  there  was  no  need  of  his  setting  apart  funds 
to  defeat  the  law  authorizing  his  lands  to  be  taken  ;  that  he 
had  made  provision  in  his  will  to  have  it  carried  up  to  the 
highest  court  of  appeal  or  the  highest  court  in  the  United 
States.  But  then  there  is  no  such  provision  in  Vie  paper 
here  produced  as  a  will — all  we  find  there  is  the  simple  ex- 
pression of  a  wish,  a  desire,  that  Boylan  should  contest  the 
matter  in  the  courts  of  New  Jersey,  and  he  is  left  to  do  it  at 
his  own  expense,  if  he  thinks  fit — that  is  the  amount  of  it. 
Mr.  Heaton  speaks  of  conversations  with  the  deceased  about 
the  Methodist  Church  in  Newark  (to  which  §500  is  given  in 
this  paper,  and  nothing  in  the  will  of  September,  1851,) — and 
says,  on  one  occasion  deceased  said  "  that  I  (witness)  would 
find  he  had  not  forgotten  it;  that  he  should  do  something 
pretty  nice  for  us."  He  thinfo  that  conversation  was  in  the 
winter  of  1851-2;  but  this  language  has  no  manifest,  re- 
ference to  a  bequest  he  had  made,  or  intended  to  make — it 
more  naturally  signifies  that  he  intended,  and  would  make 
tlu-m  a  donation;  this  was  what  the  witness  was  pressing 
him  for.  The  Rev.  Mr.  Fort's  testimony  is  somewhat  relied 
on  to  prove  a  recognition  by  the  testator  of  the  will  of  Jan- 
uary, 1852.  It  will  be  remembered  that,  by  the  will  of  1848, 
$1000  was  bequeathed  to  the  Methodist  Church  at  New  Pro- 
vidence. That  legacy  was  omitted  in  the  will  of  September, 


FEBRUARY  TERM,  1854.  351 

Boylan  v.  Meeker. 

1851,  and  is  found  inserted  in  this  paper  offered  for  probate. 
Mr.  Fort  says,  that  in  a  conversation  he  had  with  the  de- 
ceased in  May,  1852,  a  little  before  his  decease,  he  told  him 
"  it  was  his  intention  to  leave  us  $1000  towards  the  erection 
of  a  new  church,  provided  we  expended  $4000  ;"  [the  bequest 
in  the  contested  will  is  "$1000  when  they  build  a  new  church 
which  shall  cost  $3000,  provided  it  is  built  in  three  years 
after  my  decease."]     "  I  wished  to  know,"  says  the  witness, 
"  whether  the  legacy  would  be  available  upon  his  death  " — 
"whether  it  was  in  lands  or  money."      He  stated  it  was  a 
specific   legacy  from  residuary  property ;    that  if  his  execu- 
tors were  careful  in  settling  up  his  estate  there  would  be  no 
difficulty  about  our  bequest.      I  thanked  him  for  the  offer, 
and  told  him  pleasantly  that  we  would  erect  a  monument  to 
his  memory.     He  stated  that  he  had  made  arrangement  for 
a  monument.     But  much  of  the  force  of  this  testimony,  as 
well   as  that  of  Mr.  William  G.  Lord,  to  the  effect  that,  in 
April,  1852,  the  deceased  told  him   that  he  had  been  making 
a  will  recently,  and  had  left  $1000  to  this  church,  is  neu- 
tralized by  that,  of  Mr.  Levi  Clark;  for  it  will  be  remem- 
bered   that,  as    late   as  May,   1852,  deceased   was  arranging 
with  Mr.  Clark  to  have  a  codicil  prepared  bequeathing  this 
very  amount  to  that  church  project;  and  it  is  not  improba- 
ble that,  speaking  with  Mr.  Fort  and  Mr.  Lord,  he  may  have 
referred  to  a  thing  as  done  which  he  was  about  to  do.     As 
to  the  monument,  making  "  arrangement  for  a  monument," 
by  no  means  necessarily  implies  a  direction  to  that  effect  by 
will.     Again,  Mr.  Fort  says  he  told  Mr.  Meeker  that  he  un- 
derstood he  intended  to  leave  the  farm,  the   homestead,  and 
some  $30,000  besides,  to  Mr.  Muir;  that  deceased  said,  "it 
is  not  so  ;  I  shall  only  leave  him  a  few  thousand  dollars,  and 
that  is  all  " — all  what ? — " all  besides  the  farm"  is  quite  as 
natural  an  interpretation  as,  "  all  I  shall  leave  him  is  a  few 
thousand  dollars,"  which  is  the  interpretation  the  counsel  for 
the  will  put   upon   it;  and  the  September  will  leaves  Muir 
the  farm,  &c.,  and  $2000,  while  the  contested  will  gives  him 
a   house  and   $1000,   a    provision    totally   at  variance  witJi 


352  .  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

what  deceased  told  Mr.  Fort  lie  had  made  for  him.  There 
i«  another  part  of  Mr.  Fort's  testimony  which  is  relied  on 
to  make  out  a  recognition  by  the  deceased  of  the  January 
will  as  in  existence.  It  is  the  conversation  the  witness 
had  with  him  in  his  last  sickness,  a  few  days  before  his 
death.  Mr.  Fort,  on  that  occasion,  pressed  upon  him,  as 
he  says,  "  the  importance  of  giving  the  money  (the  $1000  to 
the  church)  in  his  lifetime,  that  he  might  see  the  good  of 
it,  and  be  his  own  executor,"  and  wanted  to  get  his  name 
to  a  note  or  a  sul)scription  paper  for  the  amount;  but  he 
says  the  deceased  refused — said  his  matters  were  all  ar- 
ranged— he  did  not  like  to  disarrange  them — that  "  he 
had  designed  to  leave  us  the  $1000;  that  his  temporal 
matters  were  all  arranged,  and  he  did  not  wish  to  disar- 
range them."  Taking  the  whole  of  this  conversation,  it 
makes  against  the  contested  will,  and  not  for  it.  The  de- 
ceased did  not  say,  according  to  the  evidence,  in  this  last 
conversation,  that  lie  had  bequeathed  a  legacy  to  the  church, 
but  that  he  had  designed  to  do  it — which  Mr.  Clark's  testi- 
mony shows  to  have  been  the  fact.  Mr.  Fort's  impression, 
derived  from  his  various  conversations  with  the  deceased, 
doubtless  was  that  $1000  was  left  to  the  Methodist  Church 
at  New  Providence  by  the  will ;  but  it  seems  equally  clear 
that  he  also  got  the  impression  that  a  like  sum  was  left  in 
the  will  to  the  Presbyterian  Church  in  the  same  place,  which 
is  not  found  in  either  the  September  will  or  in  this  paper. 

I  have  already  alluded  to  the  extraordinary  fact  in  this 
cause,  that  it  lias  never  been  discovered  who  drew  this  paper. 
And  I  cannot  but  think  it  somewhat  extraordinary  that  the 
fact  of  Mr.  Meeker's  bringing  back  and  depositing  with  Mr. 
Hoyt  the  paper  executed  by  him  on  the  12th  January  is  left 
to  rest  upon  the  testimony  of  Hoyt  alone.  His  credit  was 
attacked,  and  no  counter  testimony  taken  to  rebut  that  at- 
tack. The  account  he  gives  of  it  is,  that  from  one  to  three 
weeks  after  Meeker  left  his  house  on  the  13th,  the  day  after 
the  execution,  taking  the  paper  with  him,  he  came  to  his 
(Hoyt's)  house,  about  ten  o'clock  in  the  morning,  and  said 


FEBRUARY  TERM,  1854.  .  353 

Boylan  v.  Meeker. 

(I  give  his  words)  "he  wished  me  to  take  the  will  again  that 
was  executed  at  my  house.  I  took  it,  and  then  said  I  would 
keep  it  for  him,  as  I  found  it  was  the  cheapest  way  to  satisfy 
him.  He  then  asked  me  to  put  a  new  envelope  on  it,  as  the 
old  one  had  got  quite  dirty  and  some  torn.  I  did  so.  He 
then  asked  me  to  put  on  a  seal — to  seal  it  up.  I  sent  for  a 
candle  and  sealing-wax,  and  did  so.  He  then  asked  me,  or 
told  me,  to  write  '  Jonathan  M.  Meeker's  will,  of  New  Provi- 
dence, Essex  county,  New  Jersey.'  He  wrote  it,  in  the  first 
place,  with  a  pencil,  and  I  then  wrote  on  the  envelope — '  Not 
to  be  opened  until  ten  days  after  my  decease/  He  then  asked 
me  to  put  my  signature  under  it ;  I  told  him  I  would  not  do 
it — there  was  .no  necessity  for  it.  He  then  went  on  trying 
to  show  me  the  inconsistency  of  what  I  had  said,  and  in 
order  to  get  rid  of  him,  I  thought  it  would  be  the  shortest 
way  to  Avrite  my  name,  and  I  did  so.  I  then  carried  the 
will  up  stairs,  and  put  it  with  my  valuable  papers  j  came 
down,  and  told  him  that  I  must  go  away,  as  I  wa-s  obliged 
to  take  the  Philadelphia  train  at  one  o'clock  for  New  York 
at  Elizabethtown.  We  both  left  the  house  at  the  same  time." 
Now,  in  the  first  place,  I  cannot  understand  why  Mr.  Meeker 
should  have  taken  so  much  pains  to  keep  his  own  hand- 
writing from,  appearing  on  this  envelope — why  he  should 
write  on  paper  with  a  pencil  the  words  Mr.  Hoyt  should  put 
on  the  envelope,  instead  of  endorsing  it  himself — why  not 
sign  with  his  own  hand,  at  least,  the  direction  about  the  en- 
velope not  being  opened.  As  the  endorsement  stands,  signed 
by  Hoyt,  it  is  an,  absurdity — signed  by  Meeker  it  would  have 
been  proper  and  intelligible.  Meeker  was  in  the  habit  of 
writing,  and  wrote  a  good  hand  for  an  old  man.  In  the 
second  place,  this  transaction  does  not  appear  to  have  beeni 
a  secret  one — why  is  there  no  evidence  corroborating  Mr. 
Hoyt's  account  of  this  visit?  Where  and  Avho  is  the  person 
that  was  sent  for  the  candle  and  sealing-wax  ?  Did  nobody 
see  Mr.  Meeker  on  that  occasion,  or  know  of  the  purpose  of 
his  visit  but  Mr.  Hoyt?  Mr.  Hoyt's  testimony  goes  to  inti- 
mate that  he  was  reluctant  all  along  to  have  anything  to  do 


354  PREROGATIVE  COURT. 

Boylan  t.  Meeker. 

with  tliis  will — that  especially  he  desired  not  to  be  the  de- 
positary of  it — and  yet  he  produces  this  paper  without  a  par- 
ticle of  testimony,  except  his  own,  that  it  was  ever  deposited 
with  him  by  Meeker,  and  without  a  single  stroke  of  Meeker's 
hand  on  the  will  or  the  envelope,  except  the  signatures  to  the 
will,  which  were  absolutely  indispensable.  If  Mr.  Hoyt  had 
exhausted  all  his  ingenuity  in  throwing  doubts  over  this 
whole  transaction  it  could  hardly  have  been  done  more  suc- 
cessfully. 

Now,  I  take  it,  the  facts  stand  thus  upon  the  evidence. 

1 .  It  is  proved  that  the  deceased  executed  a  will  at  Mr. 
Hoyt's  house  on  the  12th  January,  1852,  and  took  it  away 
with  him. 

2.  The  deceased  was,  at  the  time,  of  memory  and  under- 
standing sufficient  to  make  a  valid  will. 

Then  here  is  a  paper  propounded  for  probate,  alleged  to  be 
the  paper  executed  on  the  12th  January  as  his  will,  and  it  is 
met — 

1.  By  a  variety  of  suspicious  circumstances — as  to  its 
place  of  deposit — its  dissimilarity  to  all  former  wills  of  the 
deceased  in  point  of  form  and  detail — in  an  unknown  hand- 
writing— the  genuineness  of  the  signatures  of  the  deceased 
questioned — the  conduct  of  Mr.  Hoyt,  who  produces  it,  and 
of  Mr.  Boylan,  a  very  large  beneficiary  in  it,  open  to  criti- 
cism— a  previous  will  carefully  drawn  by  the  testator  found 
in  his  house  among  his  papers  uncancelled,  and  bearing  date 
only  three  months  and  seventeen  days  before — and  a  large 
mass  of  evidence  showing  conclusively  that,  with  very  few 
exceptions,  in  all  the  conduct  and  conversations  of  the  testa- 
tor, from  September,  1851,  to  the  time  of  his  last  sickness, 
he  acted  on  and  distinctly  recognized  the  provisions  found  in 
the  will  of  September  as  the  provisions  of  his  last  will  and 
testament — never  directly  spoke  of  the  January  will,  and  in 
but  few  instances  gave  any  intimation  of  such  a  disposition, 
of  his  property  as  is  found  in  this  paper;  and  even  when  he 
does  refer  to  some  such  provisions,  they  are  not  entirely  in 
accordance  with  those  we  here  find,  or  are  entirely  recon- 


FEBRUARY  TERM,  1854.  355 

Boylan  v.  Meeker. 

cilable  with  the  belief  that  he  had  made  a  will  somewhat 
different  from  that  of  September,  and  had  destroyed  it — and 
the  question  left  for  consideration  is,  whether  the  evidence  of 
identity — the  proof  that  this  is  the  paper  executed  at  Hoyt's 
— is  sufficiently  clear  and  conclusive  to  stand  against  the  mass 
of  evidence  that  conflicts  with  it. 

Four  witnesses — Mrs.  Hoyt  and  her  three  daughters — are 
the  only  reliable  witnesses  upon  this  question.  They  saw  a 
will  executed — they  saw  the  paper,  as  the  testator  held  it  in 
his  hands  and  as  he  read  it,  or  read  some  part  of  it.  They 
saw  it  lying  on  the  table  in  the  process  of  execution.  No 
one  of  them  had  it  in  her  hands  or  examined  it.  It  was  by 
candlelight,  between  seven  and  ten  at  night.  One  of  the  four, 
Anna,  signed  it — they  all  saw  the  testator  sign  it.  He  talked 
about  the  different  provisions,  and  generally  about  his  prop- 
erty, relatives,  and  affiiirs  during  the  time  he  had  the  paper 
there — talked  for  an  hour  and  a  half.  The  paper  was  tlien 
put  in  his  pocket  or  pocket-book  by  the  testator,  and  these  wit- 
nesses saw  no  more  of  that  paper  then. 

Some  time  after — two  or  three  weeks  they  think — one  oQ 
them,  and  another,  and  another,  saw  an  envelope,  endorsed 
as  and  undoubtedly  the  one  produced,  among  Mr.  Hoyt's  pa- 
pers. How  it  came  there  they  have  no  personal  knowledge. 
This  envelope  remains  in  Mr.  Hoyt's  possession  until  about 
the  second  of  June,  when  he  formally  breaks  tfie  seal  in  tiieir 
presence,  produces  from  it  the  paper  now  offered  for  probate, 
and  reads  it  to  them.  He  says  it  is  the  will  executed  on  the 
night  of  the  12th — he  so  informed  them — and  Anna  Hoyt 
says  she  recognized  it  as  the  same  paper  when  the  envelop 
was  removed.  FAizabcth  says  it  is  the  same  will  she  saw 
executed.  Mrs.  Maria  L.  Hoyt  says  she  identifies  it  as  the 
same,  and  upon  reading  it  now  has  no  doubt  it  is  the  same 
read  at  her  house,  and  she  gives  the  reason  why  she  recol- 
lects several  of  the  bequests.  And  Mary  L.  says  she  should 
think,  from  the  appearance,  this  is  the  same  paper — the  same 
handwriting  in  the  body  of  it.  They  all  speak  with  confi- 


356  PREROGATIVE  COURT. 

Boy  Ian  v.  Meeker. 

dence,  too,  as  to  the  genuineness  of  the  signatures,  and  I  do 
not  doubt  that  they  speak  what  they  believe  to  be  the  truth. 

This,  under  any  ordinary  circumstances,  would  doubtless 
be  conclusive.  But  when  it  is  weighed  against  the  testimony 
on  the  other  side,  is  it  sufficient  to  produce  conviction  ?  Are 
not  these  witnesses  deceived?  It  was  nearly  five  months 
since  they  had  seen  the  will  executed  that  this  paper  was 
produced.  It  was  then  produced  under  circumstances  which 
awakened  no  suspicion  in  their  minds — they  had  understood 
all  along  that  the  will  was  in  that  envelope — when  opened, 
Mr.  Hoyt  produced  it  as  tJie  will.  Anna  testifies  some  three 
weeks  after  this — Elizabeth  nearly  seven  months  after — 
Maria  L.  eight  months  after,  and  Mary  E.  nearly  eleven 
months  after.  How  easily  after  this  lapse  of  time  the  wit- 
nesses, especially  the  last  three,  might  confound  the  impres- 
sion made  upon  their  minds  by  this  paper,  shown  and  read 
to  them  in  June,  with  their  recollections  of  that  they  saw  by 
candlelight  on  the  12th  of  January. 

The  grounds  upon  which  these  witnesses  rest  their  belief 
^that  this  is  the  same  paper  are — 1.  The  general  appearance 
of  the  handwriting  in  the  body  of  it.  Now,  if  this  is  a  sur- 
reptitious paper,  it  is  not  impossible  or  improbable  that  it 
was  drawn  by  the  same  person  who  actually  drew  the  paper 
executed  in  January.  But  independent  of  this,  I  think,  as  a 
general  truth,  a  strange  handwriting,  seen  casually  by  candle- 
light, is  seldom  very  accurately  remembered  after  so  long  a 
lime,  unless  when  first  seen  the  attention  of  the  witness  is 
very  specially  called  to  some  peculiarity  in  it  or  about  it. 
Then — 2.  The  witnesses  recognize  the  signatures.  Anna 
Hoyt  believes  she  recognizes  her  own  signature  there.  Now, 
as  to  this,  experience  teaches  us  that  it  is  no  very  difficult 
thing  to  make  the  fac  simile  of  a  signature  a  thing  so  per- 
fect that  the  keenest  expert  may  be  deceived,  when  the  party 
making  it  has  possession  of  the  genuine  signatures  to  be  imi- 
tated. Then  the  last  ground  of  recognition  is  the  contents 
of  the  paper.  But  the  will  actually  executed  in  January 
had,  it  is  to  be  presumed,  devises  or  bequests  of  some  kind 


FEBRUARY  TERM,  1854.  357 

Boylan  v.  Meeker. 

in  it  to  every  party  named  in  this  paper,  and  its  general 
contents  were  no  doubt,  in  all  these  particulars,  very  much 
as  the  witnesses  testify.  Yet  how  easily,  if  that  paper  was 
destroyed,  might  a  substitute  for  it  be  prepared  making 
changes  in  the  dispositions,  as  to  some  of  the  parties,  of  the 
most  vital  character,,  which  would  not  be  observed  by  these 
witnesses  after  hearing  Mr.  Meeker  read  and  talk  about  a 
will,  his  property,  his  relations,  and  affairs  for  an  hour  and 
a  half.  No  doubt  the  attention  and  curiosity  of  these  wit- 
nesses were  awakened  by  the  singular  circumstances  of  Mr. 
Meeker  coming  there  to  execute  a  will;  but  they  cannot  tell 
how  many  leaves  it  was  written  on,  though  this  paper  has  but 
three,  nor  how  many  times  the  deceased  wrote  hfs  name  on  the 
margins,  though  written  here  but  three  times. 

The  deceased  was  very  much  in  the  habit  of  making  wills. 
Several  of  his  old  wills  and  fragments  of  old  wills  are  pro- 
duced. Hoyt  had  once  drawn  a  will  for  him,  of  which  no- 
thing has  been  heard.  One  of  his  last  acts  was  to  try  and 
get  Mr.  Clark  to  prepare  a  codicil.  He  made  wills,  and  had 
them  made  for  him ;  soon  changed  his  mind,  and  cancelled 
or  destroyed  them.  It  seems  to  have  been  an  inveterate 
habit  with  him,  too,  to  talk  about  his  wills  and  the  bequests 
he  had  made.  So  that  there  is  nothing  incredible  in  the 
supposition  that  such  a  will  as  is  found  was  made  by  him 
in  January,  and  afterwards  destroyed  by  him.  It  would  be 
in  vain,  and  worse  than  in  vain,  to  speculate  as  to  how  this 
strange  state  of  things  has  been  brought  about,  or  who  are 
implicated  in  it.  It  cannot  be  denied  that  clouds  and  sha- 
dows hang  about  the  case — that  it  is  full  of  difficulties, — 
but  we  must  tread  our  way  by  the  best  lights  we  have.  That 
which  convinces  the  judgment  must  be  taken  as  the  truth  of 
the  case.  I  cannot  say  that  Mrs.  Hoyt  and  her  daughters 
are  perjured — it  would  be  as  unjust  as  cruel  to  say  it — the 
evidence  does  not  warrant  me  in  saying  it.  Then  a  will  was 
executed  in  January.  The  deceased  was  then  of  sound  and 
disposing  mind  and  memory.  Upon  the  testimony  in  this 
cause  I  should  violate  every  settled  rule  of  decision  upon 


358  PREROGATIVE  COURT. 

Boylan  v.  Meeker. 

• 
such  questions  to  deny  it.     Yet  the  testimony  is  to  my  mind 

conclusive  that  the  deceased  never,  in  the  last  months  of  his 
life,  dreamed  even  that  the  will  of  September  was  not  his 
lust  will ;  to  question  that  would  be,  it  seems  to  me,  to  give 
the  lie  direct  to  all  he  did  and  said  in  the  latter  part  of  his 
life.  I  find  it  impossible  to  bring  my  mind  to  the  belief 
that  this  paper  is  his  will.  The  Orphans  Court,  from  which 
this  appeal  comes  up,  after  the  long  and  laborious  investiga- 
tion they  gave  this  question,  decided  unanimously  on  all  the 
facts  that  it  was  not  his  will,  and  I  cannot  on  my  conscience 
say  they  were  wrong.  I  am  therefore  bound  to  advise  his 
Honor  the  Ordinary  that  the  decision  of  the  court  below  be 
affirmed,  so  far  as  it  denies  probate  of  this  wilL  As  to  that 
part  of  the  decree  which  denies  costs  and  expenses  to  the 
party  propounding  this  paper  for  probate  out  of  the  estate, 
after  much  hesitation,  I  have  come  to  the  conclusion  that 
there  should  be  a  reversal,  on  the  ground  that  the  caveators 
have  not  made  out  by  direct  proof  any  fraud  as  against  Boy- 
lan, or  any  direct  knowledge  on  his  part  that  this  paper  was 
surreptitious  at  the  time  he  offered  it  for  probate.  It  did 
not  come  from  his  custody.  He  was  named  in  it  as  executor. 
It  may  be  he  honestly  believed  it  to  be  the  paper  it  purported 
to  be.  His  connection  with  it  is  unfortunate ;  but  he  ought 
not  to  be  condemned,  upon  suspicion  merely,  to  the  heavy 
costs  and  expenses  of  conducting  these  proceedings;  I  am 
therefore  disposed  to  advise  his  Honor  the  Ordinary  that 
the  costs  and  reasonable  counsel  fees  of  the  party  propound- 
ing this  paper  for  probate  should  be  paid  out  of  the  estate. 
This  seems  to  me  the  more  reasonable,  from  the  fact  that  the 
competency  of  the  deceased  to  make  a  will  was  put  in  issue 
by  the  caveators,  and  has  been  sustained. 

CITED  in  Harris  v.  Vanderueer'a  F,j?r,  6  C.  E.  Or.  573. 


CASES 


ADJUDGED  IN 


THE  PREROGATIVE  COURT 


OP  THE 


MAY  TERM,  1862. 


HENRY  W.  GREEN,  ESQ.,  ORDINARY. 


SARAH  B.  SMITH,  appellant,  and  JONATHAN  E.  McCiiES- 
NEY  and  others,  respondents. 

A  testator  made  a  will  in  1850,  a  codicil  thereto  in  1854,  and  a  subsequent 
will  in  1858,  by  which  he  bequeathed  and  disposed  of  all  his  real  and 
personal  estate  without  exception,  and  which  contained  a  clause,  "  here- 
by revoking  all  former  wills,  and  declaring  this  to  be  my  last  will  and 
testament." .  After  the  last  will  had  been  admitted  to  probate,  on  an 
application  to  admit  to  probate  the  codicil  of  1854,  it  was  held  that  the 
last  will  contains  both  an  implied  and  express  revocation  of  the  codicil. 
The  revocation  extends  to  all  prior  testamentary  dispositions  of  testa- 
tor's estate,  real  and  personal. 

It  is  a  principle,  as  ancient  as  it  is  familiar,  that  no  man  can  have  two  wills. 
The  last  will  is  of  necessity  a  revocation  of  all  former  wills,  so  far  as  it 
is  inconsistent  with  them.  So  if  one  having  made  his  will,  afterwards 
make  another  will  inconsistent  therewith,  but  not  expressly  revoking  it, 
this  will  nevertheless  be  a  revocation. 

This  implied  revocation  is  effected  only  when  the  last  will  is  inconsistent 
with  the  former;  for  it  maybe  a  will  of  different  goods,  or  different 
pieces  of  land,  so  that  the  two  may  be  taken  conjointly  as  the  will  of  the 
testator/ 

If  the  latter  will  contain  an  express  revocation  of  the  former,  it  is  iiuma- 

359 


360  PREROGATIVE  COURT. 

Smith  t>.  McChcsney. 

terial  whether  the  latter  be  or  be  not  inconsistent  with  the  former,  or 
whether  it  operates  as  a  will  at  all  or  not. 

It  is  undoubtedly  true  that  the  revocatory  clause  is  not  always  imperative, 
and  that  its  effect  depends  upon  the  intention  of  the  testator,  but  that 
intention  must  in  every  case  be  gathered  from  the  contents  of  the  instru- 
ments themselves.  Parol  testimony  is  inadmissible  for  this  purjiose.  It 
is  never  admissible  to  contradict  by  parol  the  terms  of  a  will,  or  to  over- 
turn its  plain  provisions. 


On  appeal  from  the  Orphans  Court  of  the  county  of  Mercer. 

M.  Beasley,  for  appellant. 

This  codicil  may  be  admitted  to  probate  notwithstanding 
the  last  will,  if  the  court  is  satisfied  that  it  was  not  the  in- 
tention of  the  testator  to  revoke  the  codicil.  1  Williams  on 
Executors  133;  2  Greenleafs  Evidence,  §  682. 

The  clause  in  the  will  of  1858,  by  which  testator  declares 
that  he  " revokes  all  former  wills"  has  no  other  effect  than 
to  destroy  the  will  of  1850.  It  does  not  revoke  the  codicil. 
Van  Wert  v.  Benedict,  1  Bradf.  114,  121 ;  Denny  v.  Barton, 
2  Phitt.  575. 

The  intention  of  the  testator  is  clear  from  the  testimony, 
and  parol  evidence  is  admissible  to  show  his  intention.  1 
Williams  on  Executors  312 ;  Sandford  v.  Vaughn,  1  Phill. 
128. 

Rickey,  for  respondents. 

The  will  of  1858  contains  a  total  disposition  of  all  testa- 
tor's property. 

This  is  an  implied  revocation  of  all  former  wills  and  codi- 
cils. It  is  inconsistent  with  the  existence  of  any  prior  tes- 
tamentary disposition  of  the  property.  1  Williams  on  Exe- 
cutors 1 30 ;  Snowhill  v.  Snowhitt,  3  Zab.  447 ;  1  Powell  on 
Devises  517;  2  Greenleaf's  Ev.,  §  681  ;  1  Jarman  on  Wills 
1 56 ;  Cutty  v.  Gilbert,  29  Eng.  Law  and  Eq.  64,  69 ;  Moore 
v.  Moore,  1  Phill.  375. 

Parol  evidence  is  inadmissible,  and  if  admissible  is  of  little 
value  against  testator's  acts; v.  Henning,  1  Phitt.  439. 


MAY  TERM,  1862.  361 

Smith  v,  McChesney. 

Here  is  a  clear  and  express  revocation  of  all  former  Avills. 
1  Jarman  on  Wills  56;  2  Greenlea/'s  Ev.}  §681;  BoudinoCs 
Ex'r  v.  Bradford,  2  Dall.  267. 

The  execution  of  the  second  will  is  a  destruction,  and  not 
a  suspension  of  the  former  will.  A  subsequent  destruction 
of  the  second  will  does  not  revive  the  first.  James  v.  Marvin, 
3  Conn.  576. 

THE  ORDINARY.  Charles  G.  McChesney,  of  the  city  of 
Trenton,  made  and  published  his  last  will  and  testament, 
bearing  date  on  the  twentieth  of  October,  1858.  The  will 
contains  a  clause  revoking  all  former  wills.  The  testator 
died  on  the  seventh  March,  1861.  This  will,  having  been 
duly  proved  by  the  subscribing  witnesses,  was  admitted  to 
probate  by  the  Orphans  Court  of  tlie  county  of  Mercer  on 
the  twenty-second  of  April,  1861.  The  testator  had  in  his 
lifetime  executed  a  previous  will,  bearing  date  on  the  twenty- 
eighth  of  January,  1850,  and  also  a  codicil  to  said  will,  bear- 
ing date  on  the  twenty-seventh  of  April,  1854.  This  codicil 
was  also  offered  to  the  Orphans  Court  for  probate  by  Sarah 
B.  Smith,  the  principal  legatee  therein  named,  but  the  court, 
by  their  decree,  dated  on  the  second  of  May,  1854,  declared 
the  said  paper  writing,  purporting  to  be  a  codicil  to  the  will 
of  the  said  Charles  G.  McChesney,  deceased,  to  be  null  and 
void,  and  denied  probate  thereof.  From  that  decree  the  pro- 
ponent appealed. 

The  only  question  involved  in  the  controversy  is,  whether 
the  will  of  1858  operated  as  a  revocation  of  the  codicil  to  the 
will  of  1850. 

It  is  a  principle  as  ancient  as  it  is  familiar,  that  no  man 
can  have  two  wills.  "  A  man,"  saith  Swinburne,  "  may,  as 
oft  as  he  will,  make  a  new  testament,  even  until  his  last 
breath,  neither  is  there  any  cautel  under  the  sun  to  prevent 
this  liberty.  But  no  man  can  die  with  two  testaments,  and 
therefore  the  last  and  newest  is  of  force.  So  that  if  there 
were  a  thousand  testaments,  the  last  of  all  is  the  best  of  all, 


362  PREROGATIVE  COURT. 

Smith  v.  McChesney. 

and  niaketh  void  the  former."  Swinb.  on  Witts,  part  7, 
§  14. 

As  a  necessary  consequence  of  this  doctrine,  the  last  will 
is  of  necessity  a  revocation  of  all  former  wills,  so  far  »3  it  is 
inconsistent  with  them.  So  if  one,  having  made  his  will, 
afterwards  make  another  will  inconsistent  therewith,  but  not 
expressly  revoking  it,  this  will  nevertheless  be  a  revocation. 
1  Pow.  on  Dev.  517. 

This  implied  revocation  is  effected  only  when  the  last  will 
is  inconsistent  with  the  former.  For  it  may  be  a  will  of  dif- 
ferent goods,  or  different  pieces  of  land,  so  that  the  two  may 
be  taken  conjointly  as  the  will  of  the  testator.  1  Poti<ell  518  ; 
1  Williams  on  Ex'rs  135. 

But  if  the  latter  will  contain  an  express  revocation  of  the 
former,  it  is  immaterial  whether  the  latter  be  or  be  not  incon- 
sistent with  the  former,  or  whether  it  operate  as  a  will  at  all 
or  not,  Powell  116. 

It  is  difficult  to  see  how,  under  the  operation  of  these 
familiar  principles,  the  codicil  offered  for  probate  can  be  sus- 
tained as  a  subsisting  testamentary  instrument.  By  the 
codicil,  dated  in  1854,  the  testator  gave  to  Sarah  B.  Smith, 
the  appellant,  five  thousand  dollars,  and  all  the  furniture  and 
silver  that  belonged  to  his  wife.  He  also  gave  the  sum  of 
twelve  hundred  dollars  to  his  executor,  in  trust  for  certain 
purposes  therein  specified.  By  the  will  of  1858,  which  has 
been  admitted  to  probate,  he  gives  all  his  estate,  real  and 
personal  without  exception,  to  his  wife  for  life,  with  power 
to  dispose  of  one  half  by  will  to  such  persons  as  she  may 
designate,  the  other  half  to  go  to  the  testator's  heirs,  under 
the  direction  of  his  wife.  Here  is  an  absolute  disposition  of 
all  the  testator's  estate,  real  and  personal,  totally  inconsistent 
with  the  disposition  made  by  the  codicil.  The  two  cannot 
stand  together.  The  will  ex  necessitate  revokes  the  codicil, 
;is  well  as  the  orignal  will  of  1850.  The  death  of  the  wife 
before  the  testator  cannot  affect  the  question  of  revocation. 

In  Henfrey  v.  Henfrey,  2  Cartels  468,  the  testator  left  two 
wills  of  different  dates,  the  latter  disposing  of  the  whole  of 


MAY  TERM,  1862.  363 

Smith  v.  McChesn(ey. 

his  property  to  his  wife,  but  containing  no  appointment  of 
executors  and  no  revocation  of  the  former  will,  nor  of  the 
appointment  of  executors  therein.  The  latter  was  held  to 
have  revoked  the  former,  and  to  he  alone  the  will  of  the  tes- 
tator. Sir  Herbert  Jenner  said,  "  the  latter  paper,  in  my 
view  of  it,  was  executed  as  a  will,  and  not  as  a  codicil,  and 
being  so  executed,  and  a  perfect  instrument  disposing  of  all 
the  property,  although  there  is  no  express  revocation  of  the 
former  will  or  of  the  appointment  of  executors,  it  is  ex  ne- 
cessitate a  revocation  of  the  former  will." 

But  the  case  of  the  respondent  does  not  rest  upon  an  im- 
plied revocation  only.  The  will  of  J858,  which  has  been 
admitted  to  probate,  contains  this  clause:  "Lastly,  I  hereby 
constitute  and  appoint  my  dear  wife  executrix  of  this  my 
last  will  and  testament,  hereby  revoking  all  former  wills,  and 
leclaring  this  to  be  my  last  will  and  testament." 

Here  is  an  express  revocation  of  all  former  wills.  The  re- 
vocation extends  to  all  prior  testamentary  dispositions  of  the 
testator's  estate,  real  or  personal.  It  is  difficult  to  conceive 
of  a  clearer  case  of  revocation,  both  implied  and  express,  than 
is  found  upon  the  face  of  the  testator's  last  will.  ' 

I  do  not  understand  it  to  be  seriously  contended,  by  the 
counsel  of  the  appellant,  that  the  clause  of  revocation  does 
not  extend  to  all  former  codicils,  as  well  as  to  all  former 
wills,  or  that  a  codicil  is  not  a  will  within  the  common  under- 
standing of  the  term. 

But  it  is  urged  that  the  revocatory  clause  is  not  always 
imperative,  and  that  its  effect  depends  upon  the  intention  of 
the  testator.  That  is  undoubtedly  true.  The  effect  of  every 
testamentary  disposition  depends  upon  the  intention  of  the 
testator.  But  that  intention  must,  in  this  as  in  every  other 
case,  be  gathered  from  the  contents  of  the  instruments  them- 
selves. The  authorities  cited  clearly  establish  this  doctrine. 
Denny  v.  Barton,  2  Phitt.  575;  Van  Wert  v.  Benedict,  1 
Bradf.  121. 

Parol  testimony  is  inadmissible  for  this  purpose.     It  ia 


364  PREROGATIVE  COURT. 

Smith  v.  McChesney. 

never  admissible  to  contradict  by  parol  the  terras  of  a  will,  or 
to  overturn  its  plain  provisions. 

It  is  further  urged,  that  the  contents  of  the  wills  and  the 
codicil,  in  connection  with  the  circumstances  of  the  testator's 
family,  do  in  themselves  furnish  satisfactory  evidence  that  the 
testator  did  not  intend  to  revoke  the  codicil. 

The  testator  had  no  children.  The  proponent  was  a  niece 
of  his  wife,  and  an  adopted  daughter,  who  had  resided  for 
several  years  in  his  family,  and  to  whom  the  evidence  shows 
that  lie  was  sincerely  attached.  A  portion  of  the  testator's 
estate  was  derived  from  his  wife.  The  primary  design  of  the 
testator,  both  in  the  will  of  1850  and  in  the  will  of  1858, 
was  to  secure  his  entire  estate  to  his  wife  for  her  life,  and  on 
her  death  to  place  the  one  half  of  it  tinder  her  control, 
thereby  enabling  her,  at  her  pleasure,  to  make  provision  for 
the  appellant.  The  other  half  of  the  estate  is  given  to  his 
own  relations.  In  these  respects  the  wills  of  1850  and  1858 
are  nearly  identical. 

It  appears,  from  the  evidence,  that  the  codicil  of  1854 
was  prepared  and  executed  by  the  testator  on  the  eve  of  his 
embarking  with  his  wife  for  Europe.  The  codicil  (as  are 
both  the  wills)  is  in  the  handwriting  of  the  testator,  and  is 
written  upon  the  same  sheet  with  the  will  of  1850.  It  com- 
mences with  the  following  recital :  "  Codicil  to  the  foregoing 
will,  which  is  to  be  considered  and  taken  as  part  thereof. — 
Whereas  my  wife  and  self  are  about  to  visit  Europe,  and 
may  not  be  spared  to  return,  considering  the  uncertainty  of 
life,  I  therefore  give  and  bequeath  to  my  adopted  daughter, 
Surah  B.  Smith,  the  sum  of  five  thousand  dollars,  to  be  paid," 
*te.  The  writing  concludes  thus :  "  Lastly,  I  appoint  Thomas 
J.  Stryker  my  executor,  to  lake  upon  himself  the  foregoing 
bequests.  This  codicil  to  be  null  and  void  should  my  dear 
wife  return  in  case  of  my  death  only." 

The  main  design  of  the  codicil  was  to  secure  a  provision 
for  the  adopted  daughter  in  case  of  the  death  of  her  aunt. 
It  doubtless  occurred  to  him,  that  if  his  wife  died  abroad  in- 
testate her  estate  would  go  to  her  relatives  gcnarally.  No 


MAY  TERM,  1862.  365 

Smith  v.  McChesney. 

provision  whatever  was  made  for  the  appellant,  and  her 
share  of  the  estate  would  go  equally  to  her  next  of  kin.  If 
the  testator  died,  and  the  wife  returned,  the  codicil  was  to 
be  void.  But  still  another  contingency  presented  itself. 
Both  the  testator  and  his  wife  might  die  before  their  return, 
and  in  that  event,  although  the  wife  survived  her  husband, 
no  provision  would  have  been  made  for  the  adopted  daughter. 
To  meet  this  contingency,  on  the  twenty-sixth  day  of  April, 
1854,  the  testator  and  his  wife  executed  a  deed  to  the  appel- 
lant, in  consideration  of  natural  love  and  affection,  for  valu- 
able real  estate  in  Hightstown.  This  lot,  it  appears,  origi- 
nally belonged  to  Mrs.  McChesney,  but  it  was  built  upon, 
and  its  value  materially  increased  by  the  testator,  and  seems 
to  have  been  considered  as  Mrs.  McChesney's  property.  The 
evidence  renders  it  probable,  and  I  shall  assume  it  as  satis- 
factorily established,  that  this  deed,  with  the  will  and  other 
papers  enclosed  in  a  sealed  envelope,  were  delivered  by  the 
testator,  before  sailing  for  Europe  to  Mr.  Stryker,  the  execu- 
tor named  in  the  codicil,  with  instructions  endorsed  upon  the 
package,  that  if  neither  he  nor  his  wife  should  return  from 
Europe  it  should  be  delivered  to  Miss  Smith.  The  package 
was  returned  to  the  testator  on  his  return  home.  The  exe- 
cution of  the  codicil  and  the  deed  seem  to  have  been  designed 
solely  to  secure,  in  any  contingency,  a  provision  for  the  ap- 
pellant in  the  event  of  the  death  of  the  testator's  wife.  If 
the  wife  died,  being  unable,  as  a  feme  covert,  to  dispose  of 
her  property,  the  will  secured  a  provision  out  of  the  estate. 
If  the  wife  returned,  having  survived  the  husband,  she  would 
be  able  to  make  provision  out  of  her  share  of  the  testator's 
estate,  and  in  that  event  the  codicil  was  void.  If  neither 
returned,  the  deed  would  secure  the  provision  out  of  the 
land  which  had  belonged  to  the  wife.  I  see  no  indication  in 
the  arrangement  that  it  was  the  intention  of  the  testator 
that  the  appellant  should  have  both  the  legacy  of  five  thou- 
sand dollars  and  the  real  estate  conveyed  by  the  deed.  The 
plain  and  unmistakable  design  of  the  whole  transaction  was, 
that  the  appellant  should  be  provided  for,  either  by  the 
VOL.  IT.  z 


366  PREROGATIVE  COURT. 

Smith  v.  McChesney. 

legacy  or  by  the  gift  of  the  land.  It  was  not  intended  that 
she  should  take  both. 

The  will  of  1858  was  executed  as  the  testator  was  again 
about  departing  for  Europe,  and  it  is  urged  that,  as  the 
same  circumstances  continued,  the  same  motives  must  have 
operated  to  continue  the  codicil  in  force  then  as  at  the  time 
it  was  executed,  and  that  the  testator  could  not  therefore 
have  contemplated  its  revocation.  The  decisive  answer  to 
this  argument  is,  that  he  did  in  fact  revoke  the  codicil  and 
all  other  wills  in  terms  the  most  apt,  clear,  and  unequivocal. 
Subsequently  to  his  last  return  from  Europe,  on  the  fifteenth 
day  of  February,  1860,  the  testator  and  his  wife  executed  to 
the  appellant  another  deed  for  a  lot  of  six  acres  near  Hights- 
town.  At  the  same  time  the  grantee  executed  to  the  testator 
a  lease  for  his  life  of  all  the  lauds  conveyed  to  her  by  the  tes- 
tator and  his  wife.  Both  deeds  appear  to  have  been  delivered 
to  the  appellant  at  the  same  time.  They  were  recorded  to- 
gether soon  after  the  death  of  Mrs.  McChesney.  The  pur- 
pose of  the  codicil  was  thereby  fully  accomplished.  Prqvision 
for  the  appellant  was  secured,  in  the  mode  originally  contem- 
plated by  the  testator,  out  of  that  portion  of  the  property, 
the  title  to  which  was  in  his  wife.  And  as  the  deeds  were 
both  executed  in  the  lifetime  of  Mrs.  McChesney,  and  re- 
corded immediately  after  her  death,  the  fair  presumption  is 
that  they  constituted  the  provision  which  the  testator  and 
his  wife  designed  to  make  for  their  adopted  daughter.  How- 
ever this  may  be,  and  whatever  doubts  might  be  suggested 
by  the  casual  conversations  of  the  testator,  the  legal  rights  of 
the  parties  are  too  clear  to  be  mistaken. 

The  decree  of  the  Orphans  Court  must  be  affirmed  with 
costs. 


MAY  TERM,  1862.  367 


Executors  of  Moore  v.  Blauvelt. 


EXECUTORS  OP  ELIZA  MOORE,  appellants,  and  ELIZA  BLAU- 
VELT, respondent. 

What  constitutes  undue  influence  can  never  be  precisely  defined.  It  must 
necessarily  depend  in  each  case  upon  the  means  of  coercion  or  influence 
possessed  by  one  party  over  the  other.  Whatever  destroys  the  free  agency 
of  the  testator  constitutes  undue  influence.  It  is  immaterial  whether  that 
object  be  effected  by  physical  force  or  mental  coercion,  by  threats  which 
occasion  fear,  or  by  importunity  which  the  testator  is  too  weak  to  resist, 
or  which  extorts  compliance  in  the  hope  of  peace. 

Threats  of  personal  estrangement  and  non-intercourse,  addressed  by  a  child 
to  a  dependent  parent,  or  threats  of  litigation  between  the  children  to 
influence  a  testamentary  disposition  of  property  by  the  parent,  consti- 
tute undue  influence. 

The  fact  that  a  testator  has  been  induced  to  make  a  new  will  by  false 
representations  as  to  the  contents  of  an  existing  will,  is  a  proper  element 
in  the  consideration  of  the  question  of  undue  influence,  although  the 
new  will  may  not  materially  vary  from  the  former  one  in  respect  to  the 
subject  matter  of  the  false  representations. 

Testimony  on  a  question  of  undue  influence,  which  is  but  matter  of  opinion, 
is  entitled  to  consideration  only  so  far  as  it  is  sustained  by  facts 


Bradley,  for  appellant. 

I.  As  to  wills  executed  by  blind  persons,  cited  Weir  v. 
Fitzgerald,    2    Sradf.    68-71  ;    Blake  v.  Knight,  3    Curteis 
547 ;    1  Jarman  on  Wills  47-8    (old   edition) ;   Fincham    v. 
Edwards,   3    Ourteis   63 ;   Modern   Prob.   of  Wills   201-12 ; 
Longcliamp  v.  Fish,  5  Bos.  &  P.  415. 

II.  As  to  testamentary  capacity. 

Boylan  ads.  Meeker,  4  Dutcher  277,  (recognizing  4  Wash. 
C.  C.  It.  267-8-9);  Den  v.  Vaneleve,  2  Smith.  670;  Harri- 
son v.  Rowan,  3  Wash.  585-7 ;  Sloan  v.  Maxwell,  2  Green's 
Ch.  571,  581;  Whitenack  v.  Stryker,  1  Green's  Ch.  11,  12, 
26-27;  Lowe  v.  Williamson,  Ib.  85-6;  Den  v.  Gibbons,  2 
Zab.  132,  155-6;  26  Wendell  265;  Modern  Probate  of  Wills 
96,112. 

III.  As  to  what  constitutes  undue  influence. 

1  Jarman  on  Wills  36-7 ;  Tunison  v.  Tunison,  4  Braaf. 
138 ;  Chandler  v.  Ferris,  I  Barring.  454 ;  Lide  v.  Lide,  2 


368  PREROGATIVE  COURT. 

Executors  of  Moore  r.  Blauvelt. 

Erevard  403 ;  Smatt  v.  Smatt,  4  Greenl.  220 ;  Ise  v.  Ben- 
nett, 1  Coxe;  4  Wash.  268-9;  Whitenack  v.  Strykcr,  1  GraniN 
CA.  267 ;  Zoice  v.  Williamson,  76.  86. 

As  to  the  opinions  of  witnesses. 

DeTfttt  v.  .Bar&y,  13  Barb.  550;  CWow  v.  Haslam,  7  J6. 
314. 

Zcibriskie,  for  respondent. 

As  to  what  constitutes  undue  influence. 

1  Jarman  37,  41 ;  1  Williams  on  Ex'rs  41-5. 

THE  ORDINARY.  This  case  comes  before  the  court  upon 
an  appeal  from  a  decree  of  the  Orphans  Court  of  the  county 
of  Bergen,  refusing  to  admit  a  paper  writing  to  probate  as 
the  will  of  Eliza  Moore. 

The  factum  of  the  will  is  fully  established.  The  instru- 
ment was  executed  and  attested  with  all  the  formalities  pre- 
scribed by  the  statute. 

Nor  is  there  any  sufficient  ground  to  question  the  testa- 
mentary capacity  of  the  testatrix.  There  are,  indeed,  one 
or  two  witnesses,  on  the  part  of  the  caveator,  who  entertain 
a  contrary  opinion,  and  state  circumstances  tending  strongly 
to  corroborate  that  opinion.  But  the  weight  of  evidence  is 
very  decidedly  in  favor  of  testamentary  capacity.  The  evi- 
dence of  the  family  physician  of  the  testatrix,  and  of  the 
pastor  of  the  church  of  which  she  was  a  member,  is  clear 
and  decisive.  Upon  this  point  I  entertain  no  doubt. 

The  ground  relied  upon  by  the  caveator  is,  that  the  will 
was  procured  by  undue  influence. 

What  constitutes  undue  influence  can  never  be  .precisely 
defined.  It  must  necessarily  depend,  in  each  case,  upon  the 
means  of  coercion  or  influence  possessed  by  one  party  over 
the  other ;  upon  the  power,  authority,  or  control  of  the  one, 
the  age,  the  sex,  the  temper,  the  mental  and  physical  con- 
dition, and  the  dependence  of  the  other.  Whatever  destroys 
the  free  agency  of  the  testator  constitutes  undue  influence. 
Whether  that  object  be  effected  by  physical  force  or  men- 


MAY  TERM,  1862.  369 


Executors  of  Moore  f.  Blauvelt. 


tal  coercion,  by  threats  which  occasion  fear,  or  by  importu- 
nity, which  the  testator  is  too  weak  to  resist,  or  which  extorts 
compliance  in  the  hope  of  peace,  is  ; immaterial.  1  Jew-man 
on  Wills  36-9-40 ;  1  Williams  on  Ex'rs  40,  45 ;  Kinderside 
v.  Harrison,  2  Phil.  449 ;  (1  Eng.  Ecd.  Rep.  336) ;  Mynn 
v.  Robinson,  2  Hag.  169 ;  Small  v.  Small,  4  Greenl.  223  ; 
Davis  v.  Calvert,  5  Gitt  &  Johns.  302  ;  Martin  v.  Teague,  2 
Spear's  R.  268. 

In  considering  the  question  of  undue  influence,  therefore,  it 
becomes  essential  to  ascertain,  as  far  as  practicable,  the  power 
of  coercion  upon  the  one  hand,  the  liability  to  its  influence 
upon  the  other. 

The  testatrix,  Eliza  Moore,  at  the  date  of  the  will,  had 
been  nearly  seventeen  years  a  widow,  her  husband,  Lewis 
Moore,  having  died  in  June,  1843.  She  had  been  the  mother 
of  thirteen  children,  of  whom  nine  survived,  and  one  of 
those  deceased  had  left  sons  who  were  the  objects  of  her 
bounty.  Her  children,  had  all  attained  mature  age.  Three 
of  them,  a  son  and  two  daughters  who  remained  unmarried, 
resided  with  her  in  the  homestead  at  Hackensack.  Her  pre- 
cise age  does  not  appear  by  the  evidence.  None  of  her  chil- 
dren speak  of  it.  Her  pastor,  the  Rev.  Mr.  Warner,  thinks 
she  was  about  seventy-five  or  seventy-six  when  she  died. 
In  this  he  was  doubtless  in  error.  Her  son  states  that  she 
was  married  in  1798,  when  she  could  have  been,  according 
to  this  estimate,  but  thirteen  or  fourteen  years  of  age.  It  is 
safe  to  assume  that  at  the  date  of  the  will  she  was  about 
eighty  years  of  age.  She  had  been  in  the  vigor  of  her  days, 
as  all  the  evidence  shows,  a  woman  of  remarkable  energy 
and  decision  of  character.  One  of  the  witnesses  describes 
her  as  a  woman  of  strong,  earnest,  and  decided  will ;  another, 
who  knew  her  well,  says  she  was  a  woman  of  great  energy, 
strong  purpose,  and  clear  foresight.  She  was  very  deliberate, 
a  Avoman  of  good  judgment,  and  when  her  judgment  was 
once  formed  nothing  could  shake  it.  She  was  perfectly  self- 
reliant,  and  not  subject  to  be  influenced  by  others.  Another 
witness  considered  her  a  woman  of  firm  mind,  unusual  deter- 


370  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Elauvelt. 

initiation  of  will,  and  not  easily  swerved  from  her  own  opin- 
ions. One  of  her  children  says  of  her — she  was  always  firm 
and  decided,  and  never  gave  way  to  either  of  her  children 
before  she  lost  her  strength  of  mind. 

At  the  date  of  the  will  her  physical  and  mental  powers 
had  become  impaired  by  age,  disease,  and  care.  She  was 
totally  blind.  She  required  constant  attendance  and  nurs- 
ing. She  was  helpless,  and  confined  almost  entirely  to  her 
bed.  She  suffered  from  extreme  nervous  irritability,  and 
was  often  in  a  state  of  high  nervous  excitement,  resulting 
from  family  troubles.  Within  a  year  preceding  the  date  of 
the  will,  she  had  been  greatly  shocked  by  the  death  of  a 
daughter.  Her  physician  testifies  that  "there  were  times 
when  she  would  not  have  been  capable  of  directing  her  at- 
tention to  the  matter  of  making  a  will.  The  whole  powers 
of  her  mind  would  be  overwhelmed,  apparently,  by  the  in- 
tensity of  her  suffering.  The  symptoms  of  her  nervous  mor- 
bid irritability  exhibited  themselves  in  a  very  remarkable 
degree.  I  gave  her  nervines  and  tonics,  and  for  the  rest  de- 
pended upon  kind  nursing  and  freedom  from  excitement  as 
much  as  practicable.  Powerful  and  frequent  anodynes  were 
used,  and  she  was  kept  to  some  extent  under  their  influence. 
The  highly  morbid  irritable  state  of  the  nerves  under  which 
she  labored  is  very  frequently  the  precursor  of  insanity,  and 
it  was  to  enable  the  brain  to  recuperate  its  energies  and 
powers  that  I  employed  these  remedies  to  prevent  that  un- 
fortunate result.  In  the  nervous  condition  in  which  the  tes- 
tatrix was,  anything  that  excites  the  mind  greatly  makes  it 
temporarily  in  a  condition  approaching  insanity,  and  may 
very  easily  produce  insanity.  The  morbidly  sensitive  ner- 
vous state  in  which  the  testatrix  was  about  the  time  of  mak- 
ing the  will  would  materially  diminish  her  powers  of  resisting 
urgent  and  continual  importunities  of  those  about  her  to 
change  her  will.  To  the  question,  whether  the  testatrix 
would  certainly  have  yielded  to  any  continued  urgency  by 
the  united  importunity  of  the  children  that  were  about  her, 
he  says,  I  cannot  answer  differently  from  what  I  did  to  the 


MAY  TERM,  1862.  371 


Executors  of  Moore  v.  Blauvelt. 


last  question.  Her  situation  was  peculiarly  dependent,  being 
blind  and  dependent  upon  her  children  around  her.  Whether 
she  would  positively  resist,  I  cannot  answer. 

I  deem  this  testimony  of  her  physician  especially  worthy 
of  notice,  not  only  from  the  fact,  that  he  had  the  best  oppor- 
tunities of  forming  a  correct  opinion,  having  been  for  a  long 
period  in  close  attendance  upon  the  testatrix,  but  also  from 
his  high  professional  standing  and  intelligence,  and  because 
lie  is  one  of  the  executors  who  offer  the  will  for  probate,  and 
can  have  no  inducement,  from  feeling  or  otherwise,  to  give 
color  to  the  case  adverse  to  the  validity  of  the  will. 

Many  years  previous  to  the  date  of  the  will,  Doct.  Blauvelt, 
a  son-in-law  of  the  testatrix,  the  husband  of  her  daughter 
Eliza,  th&caveator  in  this  cause,  died  leaving  an  infant  daugh- 
ter. Upon  his  death-bed  the  testatrix  had  promised  him  that 
she  would  treat  his  child  as  one  of  her  own  children.  This 
promise  she  appears  to  have  regarded  as  sacredly  binding. 
She  had  at  different  times  made  her  will,  giving  to  this 
granddaughter  a  share  of  her  estate  as  one  of  her  own  chil- 
dren. The  last  of  these  wills  is  an  exhibit  in  the  cause.  It 
is  dated  on  the  eighth  of  September,  1854,  and  at  the  time 
of  the  execution  of  the  will  in  question  was  in  the  hands  of 
her  counsel,  by  whom  it  was  drawn,  and  who  was  appointed 
one  of  the  executors.  This  arrangement  in  favor  of  the 
granddaughter  was  known  to  her  children,  and  was  regarded 
by  several  of  them  as  partial  and  unjust.  The  testatrix 
had  been  urged  by  them  to  alter  it,  but  she  had  steadfastly 
refused,  and  had  declared  that  while  she  retained  her  senses 
it  should  never  be  done.  Four  of  the  children  are  repre- 
sented to  have  been  particularly  dissatisfied  with  the  arrange- 
ment, and  desirous  to  have  it  altered,  viz.  John,  Louisa,  wife 

of Fair,  Charles,  and  Mary,  the  two  latter  residing  with 

their  mother.  They  remonstrated  with  the  mother  against 
her  giving  to  the  grandchild,  as  well  as  to  its  mother,  who 
was  still  living,  the  share  of  a  child.  This  state  of  things 
in  the  family  was  no  secret,  but  seems  to  have  been  well 
known  in  the  neighborhood.  It  is  spoken  of  by  the  Rev. 


372  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt. 

Mr.  Warner  and  several  other  of  the  witnesses.  It  continued 
for  several  years,  and  until  after  the  return  of  Mrs.  Fair, 
one  of  the  daughters  of  the  testatrix,  from  Europe.  She 
was  absent  two  years,  and  returned  in  May,  1858.  Her 
sister  Mary  fixes  the  date  of  Mrs.  Fair's  return  in  May, 
1859.  But  this  is  obviously  a  mistake,  for  the  will  was 
executed  in  February,  1859,  when,  as  all  the  witnesses  agree, 
she  was  present,  and  had  been  at  her  mother's  the  previ- 
ous summer.  The  facts  which  have  been  stated  touching 
the  condition  and  circumstances  of  the  testatrix  and  her 
family  are  clearly  established  by  the  evidence.  Nor  do  they 
seem  to  be  at  all  controverted.  It  is  important  that  they 
should  be  borne  in  mind  in  estimating  the  force  of  the  cir- 
cumstances connected  with  the  execution  of  the  will  and 
the  weight  of  the  testimony  where  the  witnesses  are  in  con- 
flict. 

Louisa  Moore,  a  daughter  of  the  testatrix,  who  left  home 
a  few  days  before  the  execution  of  the  will,  gives  this  account 
of  some  of  the  circumstances  preceding  its  execution:  "The 
opposition  of  the  children,  opposed  to  the  will  as  it  had  been 
executed,  was  manifested  by  their  arguing  and  reasoning 
with  ma,  and  trying  to  convince  her  that  what  she  had  done 
was  wrong.  The  influences  were  more  especially  exerted 
upon  her  mind  for  the  last  two  years.  She  was  talked  to 
frequently,  sometimes  for  an  hour  or  two  at  a  time.  There 
was  a  great  deal  of  trouble  about  the  will,  and  they  told  ma 
that  they  wished  her  to  write  a  codicil,  because,  they  said, 
she  had  left  Eliza  Zabriskie  what  she  had  no  right  to  leave 
her,  and  that  was  a  share  in  the  homestead,  and  then  they 
Baid  she  must  alter  that.  I  left  home  on  account  of  the 
trouble  about  the  will,  and  I  left  her  very  much  distressed, 
and  as  I  thought  completely  under  the  control  of  those  who 
were  dissatisfied  with  the  will.  From  what  I  saw  of  my 
mother,  and  of  the  influences  that  were  brought  to  bear  upon 
her,  she  would  not  have  made  this  will  if  left  to  herself. 
She  was  not  in  a  fit  state  of  mind  to  resist  the  influences 
they  brought  against  her  to  have  her  make  this  will.  From 


MAY  TERM,  1862.  373 

Executors  of  Moore  v.  Blauvelt. 

all  that  I  saw  and  heard,  the  making  of  the  new  will  was 
brought  about  by  excessive  persuasion,  importunity,  and 
threats." 

Much  of  this  testimony  is  but  matter  of  opinion,  and  is 
entitled  to  consideration  only  so  far  as  it  is  sustained  by  fects. 

Alice  H.  Kelk,  after  stating  the  disposition  which  the  tes- 
tatrix informed  her  she  had  made  of  her  property  under  the 
old  will,  testifies :  I  believe  Mr.  John,  Miss  Mary,  Mrs. 
Fair,  and  Mr.  Charles  first  suggested  to  her  a  change  in  that 
will,  or  the  making  a  new  one.  First,  she  was  requested  to 
add  a  codicil  to  the  will,  and  the  doctor  and  minister  being 
asked  as  to  her  capability  to  do  it,  when  they  said  they 
thought  she  was  capable,  then  her  children  told  her,  if  she 
was  able  to  prepare  a  codicil  she  was  able  to  write  a  will. 
This  might  have  been  a  few  weeks  or  a  few  days  before  the 
making  of  the  new  will.  When  Mrs.  Fair  had  come  up  to 
see  her,  after  being  in  New  York,  Miss  Mary  told  her  that 
John  was  coming  up  the  next  day.  She  then  asked  Mrs. 
Fair  what  John  was  coining  for.  Mrs.  Fair  answered,  he  was 
coming  on  business,  saying  you  have  got  to  make  a  just  will, 
and  you  have  no  right  to  leave  a  dollar  to  any  but  your  chil- 
dren. The  next  day  Mr.  John  came  up,  and  it  was  talked 
over  and  arranged  to  have  it  done  the  next  day.  In  the 
morning,  the  person  she  wished  to  have  to  make  the  will  was 
away.  Then  she  took  hold  of  that  as  an  excuse  for  not  doing 
anything  then.  After  that  Mr.  John  Moore  came  up  to  her, 
and  bid  her  good-bye,  saying  he  could  not  see  her  again,  or 
words  to  that  effect.  Then  Mr.  Charles  took  hold  of  the 
subject,  saying  she  had  done  it  now,  that  it  would  be  worse 
than  ever — the  affair  or  the  property  would  be  worse  than 
ever.  Finally  she  seemed  to  think  that  it  would  be  best  to 
do  the  thing.  The  whole  of  this  was  under  this  excitement, 
and  she  consented  to  do  it.  Then  another  gentleman  was 
fixed  upon  to  draw  the  will.  After  it  was  done,  she  was  con- 
stantly uneasy,  and  several  times  requested  to  have  it  de- 
stroyed. Finally  she  sent  for  Mr.  Zabriskie,  and  I  suppose 
said  a  dozen  times  each  way,  "  destroy  it,"  and  "  don't  de- 


374  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt. 

stroy  it."  Mr.  Simeon  Zabriskie,  Charles  Moore,  and  myself 
were  present.  She  was  so  bewildered  that  I  said  to  her,  Mrs. 
Moore  you  are  not  in  a  fit  state  now ;  let  it  be  until  you  can 
think  of  it.  This  was  the  day  before  she  had  a  paralytic 
stroke.  After  that,  the  doctor  ordered  that  she  should  be 
kept  perfectly  quiet,  and  not  conversed  with  at  all.  The 
precise  time  that  elapsed  between  the  execution  of  the  will 
and  the  stroke  of  paralysis  is  not  clearly  ascertained.  Three 
of  the  witnesses  speak  of  it  as  being  but  a  fe\v  days.  Two 
others,  Miss  Louisa  Moore  and  Doct.  Hasbrouck,  speak  of  it 
as  being  weeks.  None  of  them  pretend  to  fix  the  time  with 
precision.  It  was  probably  not  less  than  two  weeks.  During 
this  period,  it  is  clearly  shown  that  her  mind  vibrated  be- 
tween approval  and  condemnation  of  the  act  that  she  had 
done.  The  material  fact  to  be  noted  is,  that  during  this  in- 
terval she  did  not  rest  satisfied.  She  was  constantly  uneasy, 
and  the  very  day  before  she  was  stricken  with  paralysis  she 
sent  for  the  scrivener,  and  requested  the  will  to  be  destroyed. 
The  credibility  of  these  two  material  witnesses,  the  nurse 
and  the  daughter,  are  not  seriously  impeached.'  It  is  said, 
indeed,  that  the  one  is  a  partizan  or  friend  of  the  cavcator, 
and  the  other  is  not  of  very  strong  mind,  but  nothing  is 
suggested  unfavorable  to  their  character  for  veracity.  Let 
us  see,  then,  how  far  their  testimony  is  incidentally  sustained 
by  admitted  facts  or  by  the  direct  testimony  of  other  wit- 
nesses. It  is  clearly  proved,  as  stated  by  Miss  Louisa  Moore, 
that  she  was  absent  from  home  at  the  time  the  will  was 
executed.  Charles  and  Mary  were  at  home.  The  will  was 
executed  on  Friday,  the  fourth  of  February.  On  Thursday, 
the  day  previous,  John  arrived  from  New  York.  Mrs.  Fair 
came  on  Wednesday.  On  the  day  of  the  execution  of  the 
will,  and  on  the  day  previous,  John,  Charles,  Mrs.  Fair,  and 
Mary  were  in  the  house  with  their  mother  alone.  .  No  other 
member  of  the  family  was  present,  and  no  one  else  but  the 
nurse,  whose  testimony  we  have.  On  the  afternoon  of 
Thursday,  the  contents  of  that  will  and  who  should  be  the 
executors  were  discussed  and  settled.  In  the  language  of 


MAY  TERM,  1862.  375 

Executors  of  Moore  v.  Blauvelt. 

John,  "  the  whole  ground  was  gone  over."  What  passed  at 
that  discussion  we  are  left  in  great  measure  to  conjecture. 
We  know  that  the  contents  of  the  will  were  moulded  to  sat- 
isfy the  views  and  wishes  of  those  children  of  the  testatrix 
who  were  dissatisfied  with  the  existing  will.  It  would  na- 
turally have  been  supposed  that  the  testatrix,  if  this  change 
of  will  had  been  hers,  would  have  had  recourse  to  her  coun- 
sel, by  whom  the  former  will  had  been  drawn ;  who  had 
been  appointed  one  of  her  executors,  and  to  whose  custody 
for  safe  keeping  the  will  had  been  intrusted.  But  this  was 
carefully  avoided.  It  was  orfginally  proposed  to  add  a  codi- 
cil to  the  existing  will.  This  was  the  idea  of  the  testatrix  a 
few  days  before  the  will  was  executed,  and  she  then  seemed 
to  have  no  idea  of  changing  her  executors.  She  consulted 
one  of  them,  and  stated  that  her  only  object  was  to  alter  a 
provision  which  she  had  been  led  to  believe  was  in  the  exist- 
ing will,  but  which  in  point  of  fact  was  not  there.  The  pur- 
pose of  making  a  new  will  and  of  changing  the  executors 
was  adopted  very  shortly  before  the  will  was  executed.  We 
learn  from  the  lips  of  Doct.  Hasbrouck,  at  whose  instance  it 
was  done,  and  the  motive  that  led  to  it.  To  the  question, 
did  John  L.  Moore,  or  any  one  else,  consult  you  about  being 
an  executor  before  Mrs.  Moore  herself  spoke  to  you — he  an- 
swers, "Mr.  John  L.  Moore  and  Charles  Moore,  if  I  am  not 
mistaken,  stated  it  would  be  agreeable  if  I  would  be  an  ex- 
ecutor ;  Charles  said  it  was  the  wish  of  the  family  (not  of  the 
testatrix,  but  of  the  family,)  that  the  estate  should  be  in  the 
hands  of  an  honest  man,  and  out  of  the  hands  of  the  lawyers. 
He  said  he  had  no  doubt  they  would  make  out  of  it  what 
they  called  a  beautiful  case.  I  declined  the  position  both  to 
John  and  Charles."  Knowing  the  character  of  the  legal 
gentlemen  who  had  been  appointed  executors  of  the  existing 
will,  it  is  easy  (o  understand  the  animus  of  this  whole  trans- 
action. The  executors  of  the  new  will  were  selected  and 
spoken  to  by  the  sons.  They  both  called  ^on  Doct.  Hasbrouck 
before  the  subject  was  mentioned  to  him  by  the  testatrix, 
although  he  was  her  family  physician  and  saw  her  frequently. 


376  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt. 

The  scrivener  was  selected  in  the  same  way.  John  went  for 
one  counsel,  who  it  had  been  agreed  should  write  the  will, 
and  who  was  absent.  He  called  of  his  own  accord  upon  an- 
other, who  was  engaged,  and  then  went  for  the  scrivener 
who  had  been  selected  as  one  of  the  executors.  Mr.  Simeon 
Zubriskie,  the  scrivener,  was  an  old  neighbor  and  acquaint- 
ance of  (he  testatrix.  He  had  never  been  advised  by  (he 
testatrix  of  her  purpose  to  make  him  an  executor.  He  says 
that  John  L.  Moore  came  for  him.  "He  told  me  how  the 
will  was  to  be  drawn;  told  me  all  the  provisions  of  the  new 
will,  as  Mrs.  Moore  afterwards  stated  them  to  me ;  told  mo 
that  she  had  made  a  will  before,  but  was  not  satisfied  with 
it;  she  wished  me  to  come  and  draw  another  will,  and  wanted 
me  and  Dr.  Hasbrouck  to  be  executors.  I  thought  this  was 
rather  strange  that  he  should  call  on  me  to  draw  the  will. 
I  told  him  I  would  go  to  Mrs.  Moore's  probably  the  next  day, 
not  immediately,  and  hear  what  site  had  to  say  about  it."  It 
is.  certainly  a  remarkable  and  significant  fact,  that  the  family 
physician  not  only  refuses  to  act  as  executor  upon  the  request 
of  the  sons,  but  an  old  neighbor  and  friend  declines  to  act  at 
all  at  the  request  of  the  son,  though  he  professes  to  come  in 
the  mother's  name,  but  replies  he  will  come  the  next  day, 
and  hear  what  she  had  to  say  about  it.  The  witness  adds — 
"  Mr.  Moore  told  me  she  wanted  it  done  that  afternoon,  so  I 
went  with  him  to  the  house."  So  far  from  her  desiring  it  to 
be  done  that  day,  Miss  Kelk  testifies  that  "she  took  hold  of 
the  fact,  that  the  i>erson  whom  she  wished  to  write  the  will 
was  absent,  as  an  excuse  not  to  do  anything  then,  but  finally, 
after  strong  influences  used  to  operate  upon  her,  she  con- 
sented." The  whole  active  management  of  the  matter  was 
obviously  in  the  hands  of  the  sons,  not  of  the  testatrix.  She 
appears  to  have  been  passive  in  their  hands.  All  the  evi- 
dence in  the  cause  shows  that  the  mother  did  not  desire  to 
change  the  old  will  in  favor  of  her  granddaughter.  She  was 
not  dissatisfied.  It  was  her  children  who  were  dissatisfied 
and  who  urged  the  change — all  the  evidence  shows  this;  it 
is  denied  by  no  one.  John  Moore  and  Mary  Moore,  the  two 


MAY  TERM,  1862.  377 

Executors  of  Moore  v.  Blauvelt. 

most  material  witnesses  for  the  will,  and  who  were  parties  to 
it,  confirm  the  statement.  But  they  allege  that  the  mother 
acquiesced  in  the  views  of  her  children,  and  approved  the 
change. 

The  only  question  is,  whether  that  change  of  views  was 
induced  by  undue  influence?  Was  it  induced  by  persistent 
importunity,  which  she  was  too  weak  to  resist?  Was  she 
harassed  into  submission  by  excessive  importunity?  Was  it 
assented  to  for  the  sake  of  peace? 

We  have,  at  the  outset  of  this  inquiry,  not  only  the  direct 
testimony  of  two  witnesses,  but  the  significant  fact,  that 
although  this  importunity  had  continued  for  years,  while  the 
testatrix  retained  her  health  and  vigor  of  mind,  she  success- 
fully and  utterly  refused  to  yield  to  the  importunity  or  to 
alter  her  will.  The  importunity  was  successful  only  when 
the  powers  of  her  mind  and  body  had  been  weakened  by  age 
and  infirmity,  when  she  was  bed-ridden,  blind,  racked  by 
disease,  and  utterly  dependent  upon  her  children.  We  have 
the  further  significant  fact,  that  after  the  new  will  was  exe- 
cuted, the  testatrix  was  dissatisfied,  and  sought  to  destroy  it. 
Doct.  Hasbrouck  testifies,  that  on  the  seventh  of  February, 
three  days  after  its  execution,  she  spoke  to  him  of  destroy- 
ing the  will.  He  does  not  give  us  her  language  in  full,  but 
it  is  manifest,  from  his  reply,  that  she  was  dissatisfied  with 
the  will.  "  I  said  to  her,"  is  his  testimony,  "  as  your  prop- 
erty, Mrs.  Moore,  is  your  own,  you  have  a  perfect  right  to 
do  with  it  as  you  please ;  and  if  you  have  not  made  such  a 
will  as  you  think  you  ought  to  make,  all  you  have  to  do  is  to 
destroy  it."  The  witness  inferred,  from  the  reply  of  the 
testatrix  to  this  statement,  that  she  was  not  dissatisfied. 
Her  reply  was,  "  as  to  that,  doctor,  I  don't  think  I  can  bet- 
ter it."  The  language  is  certainly  equivocal,  and  admits  of 
two  very  different  interpretations.  The  testatrix  has  put  her 
own  interpretation  upon  her  language,  for  within  a  day  or 
two  afterwards  she  acted  upon  the  doctor's  suggestion — sent 
to  the  scrivener,  and  requested  him  to  destroy  the  will.  We 
have  the  scrivener's  account  of  this  transaction,  and  of  the 


378  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt 

mode  in  which  the  purpose  of  the  testatrix  was  defeated. 
"  The  testatrix  sent  for  me  to  destroy  the  will,  not  more  than 
a  day  or  two  after  it  was  executed."  In  the  time  of  the 
transaction  the  witness  is  mistaken,  for  he  subsequently 
states  that  he  is  sure  this  occurred  after  he  went  to  Jersey 
City,  as  the  bearer  of  a  note,  written  by  Doct.  Hasbrouck, 
at  the  request  of  the  testatrix,  to  Mr.  Zabriskie,  requesting 
him  to  return  the  old  will.  This  note  is  in  evidence.  It  is 
dated  on  Monday,  the  seventh  of  February,  three  days  after 
the  date  of  the  will,  and  on  the  day  of  the  interview  already 
spoken  of  between  the  doctor  and  the  testatrix.  On  Tuesday, 
the  witness  went  to  Jersey  City,  and  returned  the  same  even- 
ing. It  was  probably  on  Wednesday  or  Thursday,  nearly  a 
wfiek  after  the  new  will  was  executed,  that  the  scrivener  was 
sent  for  to  destroy  the  will.  The  witness  states — "  I  went 
to  her  house ;  she  told  me  to  go  home,  and  destroy  that  will. 
I  went  home  with  the  intention  of  destroying  it  according  to 
my  orders,  but  on  my  way  home  the  thought  struck  me  that 
I  would  not  destroy  it  that  evening,  but  take  the  will  next 
morning  and  hand  it  to  Mrs.  Moore  herself,  and  let  her  do 
what  she  thought  proper.  Charles  Moore  came  to  my  house, 
and  asked  me  whether  I  had  destroyed  the  will.  I  told  him 
I  had  not.  He  then  told  me  his  mother  had  said  I  must 
keep  it,  and  let  it  remain  where  it  was."  Whether  the 
mother  ever  gave  such  order  to  Charles  does  not  appear.  It 
would  seem  that  she  did  not.  The  reason  assigned  by  the 
scrivener  to  the  testatrix  for  not  destroying  the  will  was, 
that  he  thought  it  best  to  bring  it  to  her ;  for  if  he  destroyed 
it,  who  would  know  he  had  destroyed  it.  The  witness  adds, 
"  a  few  days  after  that  I  was  in  the  room  with  the  testatrix, 
Miss  Mary,  Charles,  and  the  nurse,  Miss  Kirk.  Mrs.  Moore 
then  told  me  again  I  should  go  and  destroy  that  will.  A  few 
moments  after,  she  told  me  I  should  not.  After  a  few  min- 
utes, she  told  me  again  to  destroy  it.  So  then  I  made  a 
move  about  going  off.  She  then  told  me  to  leave  it  for  the 
present.  I  think  that  was  the  last  time  I  ever  saw  Mrs. 
Moore  alive.  She  was  shortly  after  taken  very  sick  with 


MAY  TERM,  1862.  379 


Executors  of  Moore  v.  Blauvelt. 


paralysis,  or  something  like  it."  The  witness  on  a  further 
cross-examination,  accounts  for  this  extraordinary  vacillation 
on  the  part  of  the  testatrix.  He  says,  "  Charles  spoke  to  his 
mother,  to  induce  her  not  to  destroy  the  will.  He  said  she 
did  very  wrong  to  destroy  it.  It  was  wicked  in  her  to  have 
it  done.  There  was  a  good  deal  said  about  the  bed,  but  I 
don't  recollect  particularly.  His  language  was  loud  and 
boisterous.  I  thought  his  language  very  severe  to  a  mother. 
In  my  opinion,  if  Charles  had  not  interfered  in  the  manner 
he  did,  she  would  have  destroyed  the  will."  This  is  the 
same  interview  spoken  of  by  the  nurse,  Miss  Kelk.  She 
says,  respecting  it,  after  describing  the  conduct  of  the  testa- 
trix— "  I  had  to  support  and  restrain  her.  Finally,  I  begged 
her  to  leave  it  at  this  time  until  she  was  able  to  think,  for 
she  was  then  quite  unable.  Charles  \vas  present  at  this  time, 
and  intimidated  her  by  violent  language,  telling  her  she 
never  had  done  justice  to  her  children,  and  he  wondered  she 
was  not  afraid  God  would  take  away  her  speech.  This  was 
the  day  previous  to  the  stroke  of  paralysis.  This  was  the 
last  time  the  subject  of  the  will  was  referred  to  by  the  tes- 
tatrix or  in  her  presence.  She  was  forbidden  to  speak  about 
the  will  after  the  stroke  of  paralysis.  The  children  were  all 
told,  and  the  doctor  said  the  subject  of  the  will  must  not  be 
mentioned  to  her." 

False  representations  were  also  made  to  the  testatrix  of 
the  contents  of  the  former  will,  in  order  to  induce  her  to 
make  the  new  one.  The  title  to  the  homestead  lot,  upon 
which  the  testatrix  resided,  she  had  derived  from  her  father, 
Michael  Price.  She  believed  that  she  had  title  to  those  pre- 
mises for  life  only,  and  that  on  her  death  they  belonged  to 
her  children.  It  would  seem,  from  the  evidence,  that  she 
had  been  .advised  by  her  counsel  that  she  had  a  legal  title  to 
those  premises  in  fee.  Nevertheless,  by  her  will,  she  directed 
that  her  daughters  might  remain  in  possession  of  the  home- 
stead for  one  year  only  after  her  death,  and  that  it  should 
then  descend  to  her  heirs-at-law,  as  if  she  had  died  intestate. 
Representations  were  made  to  the  testatrix,  that  by  this  will 


380  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt. 

she  had  given  to  the  granddaughter  a  share  in  the  home- 
stead with  her  other  children.  Mary  Moore  testifies  that 
her  mother  was  given  to  understand,  by  Mrs.  Fair  and  John, 
that  she  had  willed  a  share  in  the  homestead  to  her  grand- 
daughter. This  the  witness  states  was  one  of  the  first  things 
that  caused  dissatisfaction  in  the  testatrix  with  the  then  ex- 
isting will.  She  was  ready  and  willing  to  make  a  different 
appropriation  of  her  property.  She  saw  decidedly  the  in- 
justice of  that  will,  in  leaving  her  granddaughter  an  equal 
share  of  the  homestead.  The  testatrix  said  that  was  not  her 
intention,  and  her  impression  was  that  she  had  not  done  so. 
But  she  derived  from  her  children  the  impression  that  it  was 
otherwise,  and  consulted  Mr.  Banta,  one  of  her  executors, 
upon  the  subject.  He  said  it  was  not  so.  Mr.  Banta  testi- 
fies "  that  the  testatrix  sent  for  him,  about  a  week  before  the 
making  of  the  will,  and  spoke  of  the  change  she  wanted 
made.  She  said  they  told  her  she  had  given  her  grand- 
daughter Eliza  an  interest  in  the  homestead  equal  to  her 
children.  The  witness  repeatedly  assured  her  the  fact  was 
not  so.  She  seemed  to  think  she  had  made  such  a  disposi- 
tion of  the  homestead.  She  said  they  told  her  so,  and  almost 
insisted  upon  it,  but  afterwards  seemed  to  be  convinced  of 
what  was  said,  and  was  perfectly  satisfied  with  the  old  will." 
The  testatrix,  it  is  manifest,  Avas  thus  persuaded  that  the  ex- 
isting will  was  unjust,  and  was  thus  induced  to  make  a  new 
one.  The  force  of  this  objection,  though  qualified,  is  not 
destroyed  by  the  consideration  that  this  influence  was  used, 
not  to  induce  any  particular  disposition  of  the  property,  but 
simply  to  induce  the  making  of  a  new  will;  that  in  this  re- 
sj>ect  the  new  will  is  not  materially  different  from  the  old 
one,  and  therefore  no  one  was  prejudiced  by  it.  A  will  was 
in  existence  with  which  the  testatrix,  down  to  the  time  of 
making  the  new  will,  had  professed  herself  to  be  perfectly 
satisfied,  and  which  for  years  she  had  resisted  all  the  im- 
portunities of  her  children  to  alter.  The  fact  of  her  con- 
senting to  make  a  new  will  raises  a  presumption  that  her 
mind  had  undergone  a  change  in  regard  to  the  provisions 


MAY  TERM,  1862.  381 

Executors  of  Moore  v.  Blauvelt. 

of  the  old  one,  and  if  no  other  material  change  was  made,  it 
might  raise  a  fair  presumption  that  her  views  had  changed, 
as  it  is  alleged  they  had  done  in  regard  to  the  provision  in 
favor  of  the  caveatdr,  the  change  in  which  constitutes  the 
subject  of  complaint.  The  fact,  moreover,  that  the  testatrix 
was  induced  by  false  representations  to  act  at  all  in  the 
premises,  is  a  proper  element  in  the  consideration  of  the  ques- 
tion of  undue  influence. 

The  material  circumstances  relating  to  the  procurement 
and  execution  of  the  will  are,  that  the  children,  not  the 
testatrix,  were  dissatisfied  with  the  old  will;  that  its  con- 
tents were  well  known  to  the  family,  had  long  been  the 
subject  of  complaint  upon  their  part,  and  of  urgent  entreaty 
that  an  alteration  should  be  made ;  that  as  long  as  the  tes- 
tatrix was  in  health  this  was  resisted ;  it  was  yielded  to  only 
when  the  testatrix  was  enfeebled  in  mind  and  body  by  age 
and  disease;  that  the  children  were  the  active  agents  in 
the  procurement  of  the  will.  They  met  at  the  house  of  the 
testatrix  for  the  purpose  of  having  it  executed  without  the 
previous  request  or  knowledge  of  the  testatrix;  they  made 
application  to  the  persons  intended  to  act  as  executors,  and 
called  in  the  scrivener,  summoned  the  witnesses,  gave  di- 
rections to  the  scrivener  for  the  preparation  of  the  entire 
will  before  he  had  seen  the  testatrix;  were  present  when  the 
instructions  were  received  by  the  scrivener  from  the  testatrix, 
took  an  active  part  in  giving  those  instructions,  (so  much  so  as 
to  prompt  the  suggestion,  by  one  of  the  sisters  to  (ho  scrivener, 
that  it  was  the  will  of  her  mother,  not  of  her  brothers,  that 
he  was  preparing) ;  importuned  the  testatrix  not  to  revoke 
the  will  after  it  was  executed — interfered  to  prevent  the 
scrivener  from  destroying  it,  in  compliance  with  the  instruc- 
tions of  the  testatrix — were  present  when  the  testatrix  or- 
dered the  scrivener  to  destroy  it,  and  by  intimidation  pre- 
vented her  from  having  the  order  carried  into  execution. 
A  total  absence  of  all  evidence  that  the  testatrix  ever  be- 
fore, or  at,  or  after  the  execution  of  the  new  will  in  the 
absence  of  the  children,  by  whose  influence  the  will  waa 

VOL.  n.  2  A 


382  PREROGATIVE  COURT. 

Executors  of  Moore  v.  Blauvelt. 

procured  to  be  executed,  ever  expressed  her  dissatisfaction 
with  the  old  will,  or  her  approbation  of  the  new  one;  or 
that  she  ever  ceased,  down  to  the  hour  that  she  was  struck 
with  paralysis,  and  all  further  conversation  on  the  subject 
was  forbidden,  to  declare  that  she  was  satisfied  with  the  orig- 
inal will,  and  to  urge  that  the  new  one  should  be  destroyed. 
The  circumstances  under  which  the  act  was  accomplished,  the 
mode  of  effecting  it,  and  the  events  that  succeeded,  are  so 
indicative  of  undue  influence  on  the  part  of  the  children  that, 
in  the  absence  of  all  direct  testimony,  it  could  hardly  fail  to 
be  regarded  as  the  result,  not  of  free  agency,  but  of  undue 
influence  or  coercion. 

There  is  evidence,  also,  that  the  testatrix  was  threatened, 
as  well  as  importuned  to  alter  her  will.  Her  fears  were  di- 
rectly appealed  to,  fears  not  of  personal  violence,  but  of 
family  discord  and  litigation  among  her  children.  Louisa 
Moore  testifies,  that  after  her  mother  was  taken  sick,  those 
that  influenced  her  threatened  her  to  put  all  the  property  in 
law,  if  she  did  not  do  as  they  told  her,  and  they  told  her 
the  world  said  it  was  an  unjust  will.  Again  she  says,  I  heard 
them  threaten  her  to  put  all  her  property  in  law  if  she  did  not 
alter  her  will.  I  heard  Mrs.  Fair  say  that  it  would  all  be 
put  in  law  if  she  did  not  alter  her  will,  and  I  heard  Charles 
tell  her  so  too.  To  see  the  full  force  of  this  evidence,  and 
the  probable  effect  of  these  threats  upon  the  mind  of  the 
testatrix,  it  is  necessary  to  revert  to  the  testimony  of  John 
L.  Moore.  He  testifies,  that  after  his  father's  death  there 
were  law  suits  between  him  and  one  of  his  brothers  respecting 
the  father's  estate.  It  was  against  the  views  of  the  mother, 
and  she  sent  him  word  that  if  the  suits  were  not  stopped 
she  would  disinherit  him.  He  believes  she  did  disinherit 
him  at  one  time,  but  he  was  afterwards  reinstated  in  her 
will  the  same  as  the  other  children.  In  consequence  of 
these  difficulties,  upon  more  than  one  occasion,  the  mother 
and  son  were  not  upon  speaking  terms.  For  years  the  son 
did  not  enter  his  mother's  house  or  speak  to  her.  How 
many  years  this  continued  the  son  does  not  state.  But 


MAY  TERM,  1862.  383 


Executors  of  Moore  v.  Blauvelt. 


when  he  first  heard  she  was  entirely  blind,  then  he  wen! 
to  see  her,  and  all  coldness  after  that  ceased.  There  was 
no  formal  reconciliation  or  explanation  made;  he  went  in 
and  shook  hands,  and  that  was  an  end  of  the  affair.  This 
evidence  shows  that  there  had  been  years  of  estrangement 
between  this  son  and  his  mother,  growing  out  of  litigation 
in  the  family.  It  enables  us  to  appreciate  the  force  of  the 
evidence  given  by  Miss  Kelk,  in  depicting  the  scene  between 
the  mother  and  her  sons,  when  she  was  finally  induced  to 
consent  to  an  alteration  of  her  will.  After  stating  that  the 
mother,  on  the  day  that  the  will  was  proposed  to  be  exe- 
cuted, laid  hold  of  the  absence  of  the  person  who  she  wished 
to  write  the  will,  as  an  excuse  to  not  do  anything  then — she 
says,  "  after  that  Mr.  John  Moore  came  up  to  his  mother, 
and -bid  her  good-bye,  saying  he  should  not  see  her  again." 
This  act,  simple  as  it  seems,  must  have  brought  back  to  that 
aged  and  infirm  parent's  heart  and  memory  the  sense  and 
recollection  of  those  bitter  years  of  alienation  between  her- 
self and  her  son.  Its  language  was,  that  will  must  be  exe- 
cuted to-day  as  I  wish  it,  or  you  and  I  part.  So  it  was 
understood  by  Charles,  the  accomplice  in  this  wrong;  for 
he  immediately  took  hold  of  the  subject  by  saying,  you 
have  done  it  now,  it  will  be  worse  than  ever.  This  lan- 
guage is  addressed  by  two  sons  to  an  aged,  helpless,  blind, 
and  dependent  mother,  to  induce  her  to  execute  a  will  in 
compliance  with  their  wishes.  If  that  is  not  undue  influ- 
ence, what  is?  "Would  threats  of  personal  violence  be  more 
calculated  to  excite  fear  or  apprehension  from  a  parent,  or 
to  extort  an  unwilling  compliance  with  the  views  of  her  chil- 
dren ?  Would  any  form  of  coercion  be  better  calculated  to 
deprive  her  of  her  free  will  ?  We  know  that  in  this  case 
it  accomplished  what  years  of  argument  and  persuasion  had 
failed  to  effect.  Threats  of  personal  estrangement  and  non- 
intercourse  addressed  by  a  child  to  a  dependent  parent,  or 
threats  of  litigation  between  the  children  to  influence  a 
testamentary  disposition  of  property  by  the  parent,  consti- 
ute  undue  influence. 


384  PREROGATIVE  COURT. 

Van  Winkle  v.  Schoonmaker. 

The  standard  of  testamentary  capacity  has  been  properly 
fixed  at  a  very  low  point  in  the  scale  of  intelligence.  The 
right  of  a  testator,  however  feeble  his  powers  of  mind  or 
body,  to  the  control  of  his  property  by  testamentary  disposi- 
tion, so  long  as  he  has  intelligence  to  exert  it,  has  been,  by 
the  courts  of  this  state  at  least,  inflexibly  maintained.  It 
is  right  that  it  should  be  so.  But  it  behooves  a  tribunal  of 
justice,  while  maintaining,  upon  the  one  hand,  the  right  of 
the  testator  to  that  unlimited  dominion  which  the  law  gives 
him  over  his  property,  to  resist,  upon  the  other,  with  watchful 
jealousy  all  attempts  to  interfere  with  the  free  and  un tram- 
meled exercise  of  that  dominion,  and  to  see  that,  in  the  testa- 
tor's hour  of  weakness  and  infirmity,  the  will  of  another  13 
not  substituted  for  his  own. 

The  evidence  satisfactorily  establishes  the  fact,  that- the 
writing  offered  for  probate  was  procured  from  the  testatrix  by 
undue  influence,  and  is  not  her  last  will  and  testament. 

The  decree  of  the  Orphans  Court  must  be  affirmed  with 
costs. 


JAMES  VAN  WINKLE,  appellant,cmeZ  HENRY  SCIIOONMAKER, 
executor  of  Mary  D.  Van  Winkle,  respondent. 

• 

A  married  woman  is  incapable  of  devising  real  estate.  She  is  also  incapa- 
ble of  disposing  of  her  chattels  by  will  without  the  consent  of  her  hus- 
band. Such  a  will,  being  a  mere  nullity,  will  not  be  admitted  to  probate. 

The  wife  may,  with  the  consent  of  her  husband,  make  a  valid  will  of  her 
personal  estate,  and  such  consent  may  be  by  parol ;  it  may  be  express  01 
implied,  and  may  be  before  or  after  the  death  of  the  wife. 

The  consent  of  the  husband  is  not  obligatory,  but  is  revocable  at  his  plea- 
sure at  any  time  before  probate  granted.  It  is  nothing  more  nor  less 
than  a  consent  that  the  will  be  admitted  to  probate.  If  that  is  revoked, 
probate  cannot  be  granted. 

If,  in  consequence  of  the  husband's  assent,  rights  are  acquired  by  other 
parties  to  property  disposed  of  by  the  will,  it  seems  that  in  such  case  he 
would  not  be  permitted  to  retract  his  assent  and  oppose  the  probate. 

Where  a  married  woman  made  a  will  with  the  consent,  and  in  part  by  the 
procurement  of  the  husband,  and  after  the  death  of  the  wife,  a  day  was 


MAY  TERM,  1862.  385 


Van  Winkle  v.  Schoonmaker. 


fixed  for  the  reading  of  the  will  by  the  husband  at  his  house,  and  notice 
given  thereof  to  the  heirs  of  the  wife  by  the  husband,  who  also  knew  of 
the  will  being  taken  to  the  surrogate's  office  for  probate,  and  made  no 
objection  to  it.  The  husband  afterwards  withdrew  his  consent,  and  filed 
a  caveat  against  admitting  the  will  to  probate.  The  Orphans  Court 
having  admitted  the  will  to  probate,  the  decree  of  the  Orphans  Court 
was  reversed. 


Bradley,  for  appellant. 

THE  ORDINARY.  The  appeal  is  from  a  decree  of  the  Or- 
phans Court  of  Bergen  county,  admitting  to  probate  the  will 
of  Mary  D.  Van  Winkle,  the  wife  of  the  appellant.  The  will 
disposes  of  both  the  real  and  personal  estate  of  the  testatrix. 
It  is  dated  on  the  first  of  February,  1859,  and  was  offered 
for  probate  on  the  twenty-fourth  of  March  ensuing,  and  on 
that  day  a  caveat  was  filed  by  the  husband  against  the  pro- 
bate. 

It  appears,  from  the  evidence,  that  the  scrivener  was  re- 
quested, by  the  husband  of  the  testatrix,  to  write  the  will, 
and  was  furnished  by  him  with  instructions  for  that  purpose. 
After  the  death  of  the  testatrix,  a  day  was  fixed  for  the 
reading  of  the  will  at  the  house  of  the  husband.  Notice  was 
given  by  him  to  the  heirs  of  his  wife,  and  the  will  was  read 
there  in  his  and  their  presence.  He  knew  of  its  being  taken 
to  the  surrogate's  office  for  probate,  and  made  no  objection 
to  it. 

At  the  time  the  will  was  executed,  both  the  scrivener  and 
the  husband  of  the  testatrix  supposed  that  she  had  a  legal 
right  to  dispose  of  her  property,  real  and  personal,  by  will. 
The  mistake  was  not  discovered  until  the  will  was  taken  to 
the  surrogate's  office  for  probate.  The  fact  of  the  testatrix 
being  a  married  woman  appearing  upon  the  face  of  the  will, 
the  surrogate  suggested  doubts  in  regard  to  its  validity.  He 
told  the  parties,  however,  that  the  matter  might  be  arranged, 
the  heirs  of  the  testatrix  being  of  age,  by  their  releasing  to 
the  devisee  the  land  devised  to  her  under  the  will.  The  hus- 
band consented  to  the  probate  of  the  will,  if  the  devises,  as 
well  as  the  bequests,  could  be  carried  into  effect.  The  heirs 


386  PREROGATIVE  COURT. 

Van  Winkle  v.  Schoonmaker. 

refused  to  consent  to  the  proposed  arrangement,  and  there- 
upon the  husband  filed  a  caveat  against  the  probate.  The 
testatrix  and  her  husband  having  been  married  over  twenty 
years,  the  case  stands  entirely  clear  of  the  operation  of  the 
act  of  1 852  for  the  better  securing  the  property  of  married 
women. 

As  to  the  real  estate,  the  will  is  clearly  invalid.  A  mar- 
ried woman  is  incapable  of  devising  real  estate.  2  Bla.  Com. 
498  ;  Nix.  Dig.  874,  §  3. 

She  is  also  incapable  of  disposing  of  her  chattels  by  will 
without  the  consent  of  her  husband.  Such  a  will,  being  a 
mere  nullity,  will  not  be  admitted  to  probate.  3  Bla.  Com. 
498  ;  4  Coke's  Rep.  51,  b  ;  1  Williams  on  Executors  45. 

But  with  the  consent  of  her  husband,  the  wife  may  make 
a  valid  will  of  her  personal  estate,  or  even  of  the  goods  of 
her  husband.  Such  consent  may  be  by  parol,  may  be  ex- 
press or  implied.  It  may  be  before  or  after  the  death  of  the 
wife,  as  if  a  woman  makes  a  will  of  the  goods  of  her  hus- 
band and  dieth,  and  after  the  probate  of  the  will  the  husband 
delivers  the  goods  to  the  executor,  he  hath  made  it  a  good 
will,  notwithstanding  he  was  not  privy  to  the  making  thereof. 
It  shall  be  intended,  that  by  the  delivery  of  the  goods  by  the 
husband  to  the  executor  according  to  the  will,  he  assented  to 
the  making  thereof.  Perkins  on  Conveyances,  "Devises"  ch. 
8,  §  501 ;  1  Swinb.  on  Wills  80,  part  2,  §  9. 

In  the  case  now  under  consideration,  the  will  was  made  with 
the  knowledge  and  consent  of  the  husband  of  the  testatrix. 
His  consent  was  given  by  implication,  both  before  and  after 
the  death  of  the  testatrix. 

But  it  is  objected  that  the  consent  is  inoperative,  because 
it  was  given  by  the  husband  under  a  mistaken  apprehension 
of  his  rights.  He  believed  that  his  wife  had  a  perfect  right, 
under  the  act  of  1852,  to  dispose  of  her  property  without  his 
consent.  No  consent  therefore,  it  is  said,  can  be  implied 
from  his  acquiescence.  Even  his  express  consent,  to  be  avail- 
able, must  be  an  intelligent  consent.  However  consonant  the 
objection  may  seem,  to  our  ideas  of  justice,  I  do  not  perceive 


MAY  TERM,  1862.  387 

Van  Winkle  v.  Schoonmaker. 

upon  what  principle  it  can  rest.  As  a  general  rule,  it  is  clear 
that  a  party  cannot  be  relieved,  even  from  his  contract,  by 
reason  of  a  mistake  in  law.  Here  is  a  mere  waiver  of  his 
interest  in  the  property  bequeathed  by  the  wife.  The  hus- 
band consents  that  the  wife  shall  dispose  of  his  property,  or 
of  her  property  in  which  he  has  an  interest. 

The  consent  is  founded  upon  no  consideration.  It  is  not 
legally  binding.  It  may  be  revoked  at  the  husband's  plea- 
sure. It  is  personal  to  the  husband,  and  no  more  than  a 
waiver  of  his  rights  as  her  administrator.  It  can  only  give 
validity  to  her  will  in  case  he  survives  his  wife.  But  how 
can  it  be  said  to  be  void  or  inoperative  by  reason  of  a  mis- 
take of  his  rights.  If  no  legal  rights  have  been  acquired 
under  the  consent,  it  is  clearly  inoperative.  If  such  rights 
have  been  acquired,  it  is  not  perceived  how  they  can  be  lost 
by  reason  of  an  error  in  law  committed  by  the  husband. 

It  is  further  objected  that  the  consent  is  inoperative,  be- 
cause it  was  a  qualified  assent — an  assent  to  the  will  as  an 
entirety,  valid  in  all  its  parts.  This  qualification  was  in 
terms  annexed  to  the  consent  made,  at  the  surrogate's  office, 
to  the  probate  of  the  will.  But  no  such  qualification  was 
annexed,  in  terms  at  least,  to  the  original  assent  made  to  the 
will  at  the  time  of  its  execution.  If  this  consent  could  be 
regarded  as  a  matter  of  contract — if,  for  example,  the  hus- 
band, by  an  express  agreement,  consents  that  the  wife  shall 
dispose  of  her  entire  estate  by  will,  provided  she  bequeaths 
one  half  of  it  for  his  benefit,  or  in  such  mode  as  he  should 
suggest,  the  failure  to  comply  with  the  terms  might  termi- 
nate the  consent.  But  it  is  not  perceived  how  this  doctrine 
is  to  operate  in  case  of  an  implied  consent.  And  if  the  hus- 
band consents  that  the  wife  may  dispose  of  all  her  property 
by  will,  that  consent  cannot  be  invalid  because  a  part  of  her 
property  is  by  law  incapable  of  being  disposed  of  by  will. 
There  is  in  fact  no  room  for  the  application  of  either  of 
these  objections.  The  consent  is  not  obligatory,  but  is  re- 
vocable at  the  pleasure  of  the  husband  at  any  time  before 
probate  granted.  It  is  nothing  more  nor  less  than  a  consent 


388  PEEROGATIVE  COURT. 

Skillman  r.  Skillman. 

that  the  will  l)e  admitted  to  probate.  If  that  is  revoked, 
probate  cannot  be  granted.  2  Swinb.  on  Wills  81,  part  2,  § 
9 ;  Henley  v.  Phillips,  2  Atkynn  49 ;  1  Roper  on  Hush,  and 
Wife  170;  1  Bright  on  Husb.  and  Wife  65;  1  Williams  on 
JEx'rs  4G  ;  1  Jarman  on  Wills  31. 

Some  of  the  cases  seem  to  maintain  a  different  doctrine. 
Brook  v.  Turner,  2  Mod.  1 72. 

It  is  reported  to  have  been  held  by  Sir  H.  Jcnner  Fust, 
in  Mass  v.  Sheffield,  that  if  after  the  death  of  the  wife  the 
husband  does  assent  to  a  particular  will,  he  is  bound  by  that 
assent ;  and  as  a  consequence  of  that  decision,  it  is  stated  by 
elementary  writers,  that  if,  after  the  death  of  the  wife,  the 
husband  acts  upon  the  will,  or  once  agrees  to  it,  he  is  not,  it 
seems,  at  liberty  to  retract  his  assent  and  oppose  the  probate. 
1  Williams  on  Ex'rs  47,  and  note  w  ;  1  Bright  65,  and  note  d. 

As  applied  to  a  particular  state  of  facts,  that  may  be  true. 
If,  for  instance,  the  executor,  in  advance  of  the  probate,  with 
the  assent  of  the  husband,  dispose  of  the  property  bequeathed 
to  third  persons,  or  if  rights  are  otherwise  acquired  under 
the  will,  it  may  well  be  that  the  husband  would  not  be  per- 
mitted to  retract  his  assent  and  oppose  the  probate. 

But  this  will  be  found  not  to  affect  the  general  principle, 
that  the  consent  is  revocable  by  the  husband  at  any  time  be- 
fore probate. 

The  decree  of  the  Orphans  Court  must  be  reversed. 

CITED  in  Beats  EJr  v.  Storm,  11  C.  E.  Gr.  378. 


JACOB  SKILLMAN,  one  of  the  executors  of  Thomas  Skillman, 
deceased,  appellant,  and  DAVID  B.  SKILLMAX  and  WIL- 
LIAM II.  SKILLMAN,  respondents. 

When  executory,  being  authorized  by  the  will  of  their  testator  to  sell  his 
real  estate,  advertised  for  sale  his  farm,  which  was  sold  at  public  auction 
lo  one  S.,  who  purchased  at  the  request  of  one  of  the  executors,  who  was 
the  real  purchaser,  for  the  sum  of  $4500.  The  purchaser  did  not  sign 
the  contract  of  sale,  nor  were  the  other  conditions  complied  witli  at  the 
time,  ou  account  of  objections  to  the  sale  made  by  the  other  executors, 


MAY   TERM,  1862.  389 


Skillman  v.  Skillman. 


but  before  the  (Jay  named  by  the  conditions  of  sale  the  real  purchaser 
took  possession  of  the  farm,  contracted  for  the  sale  of  a  part  of  it,  and 
put  the  purchaser  in  possession,  and  on  the  day  and  at  the  place  appointed 
for  giving  the  deed  he  appeared,  in  compliance  with  the  conditions,  pre- 
pared to  complete  the  purchase,  but  the  other  executors  refused  to  make 
the  title.  After  repeated  unsuccessful  efforts,  during  nine  months,  to 
procure  the  title,  the  purchaser  gave  notice  to  his  co-executors  that  he 
would  no  longer  hold  himself  responsible  for  the  purchase,  and  requested 
them  to  re-sell  the  property. 

About  a  year  afterwards  the  purchaser  was  cited  before  the  Orphans  Court 
by  his  co-executors  to  render  an  account  of  his  administration,  and  was 
ordered  by  the  court  to  file  an  account  within  twenty  days,  charging 
himself  with  $4500,  the  purchase  money  of  the  farm,  as  assets  in  his 
hands. 

On  an  appeal  from  the  decree  of  the  Orphans  Court  it  was  held — 

1.  That  there  was  clearly  no  valid  contract  of  sale ;  treating  the  executor 
as  a  stranger  to  the  estate,  the  fact  that  the  purchaser  refused  to  sign 
the  conditions  because  one  of  the  executors  refused  to  ratify  the  sale,  is 
conclusive  on  that  point. 

2.  That  no  subsequent  act  of  the  purchasing  executor  bound  him.     His 
taking  possession  of  the  farm,  contracting  verbally  for  the  sale  of  a  part 
of  it,  and  putting  the  purchaser  in  possession,  were  manifestly  done  in 
good  faith  with  the  expectation  of  obtaining  the  title.     Having  failed 
in  that,  lie  cannot  be  bound  by  these  acts  as  part  performance  or  as  an 
acknowledgment  of  his  liability  as  purchaser. 

3.  The  execution  of  the  deed  by  the  other  executors  a  year  after  the  pur- 
chase was  made,  and  leaving  it  at  the  office  of  the  attorney  of  the  pur- 
chaser after  he  had  given  distinct  notice  that  he  would  not  accept  the 
title,  was  a  mere  nullity. 

4  The  purchase  of  the  property  by  one  of  the  executors  was  clearly  ille- 
gal. He  would  acquire  no  valid  title  if  the  deed  was  delivered.  If  he 
had  accepted  the  title,  and  agreed  to  pay  the  price,  he  might  not  be  per- 
mitted in  equity  to  disavow  the  act  and  refuse  to  pay  the  purchase  money. 
But  no  court  would  require  an  executor,  against  his  will,  to  act  in  vio- 
lation of  his  duty  or  to  accept  an  invalid  title. 

5.  Neither  the  Orphans  Court  nor  this  court  has  any  power  to  enforce  a 
specific  performance  of  the  contract,  even  if  the  executor  was  bound  in 
equity  to  a  specific  performance.  That  question,  as  well  as  the  question 
of  the  liability  of  the  executors  for  a  failure  to  sell  the  land  and  settle 
the  estate,  belongs  to  another  tribunal. 

The  decree  of  the  Orphans  Court  was  in  all  things  reversed,  but  no  costs 
were  allowed  to  either  party,  as  against  the  other,  nor  were  costs  awarded 
to  either  party  out  of  the  estate. 


J.  Wilson,  proctor  for  appellant. 


S90  PREROGATIVE  COURT. 

Skillraan  v.  Skillman. 
B.  Vansyckcl,  for  respondents. 

THE  ORDINARY.  On  the  sixth  of  September,  1 801,  Jacob 
Skillman,  the  appellant,  was  cited  by  the  respondents  to 
appear  before  the  Orphans  Court  of  Hunterdon  county,  to 
render  an  account  of  his  administration  of  the  estate  of  the 
testator,  Thomas  Skillman,  deceased,  and  particularly  of  the 
proceeds  of  the  sale  of  the  real  estate  of  said  deceased.  On 
the  twenty-sixth  of  November,  1861,  it  was  ordered  and  de- 
creed, by  the  said  court,  that  Jacob  Skillman,  one  of  the 
executors  of  said  deceased,  should  be  charged  with  the  sum 
of  forty-five  hundred  dollars  (with  interest  from  the  first  day 
of  April,  I860,)  the  amount  of  the  sale  of  certain  real  estate 
of  the  testator  which  had  become  assets  in  his  hands ;  and  it 
was  further  ordered  that  he  should,  within  twenty  days,  file 
his  account  charging  himself  as  decreed.  From  this  decree 
the  executor  appealed. 

The  parties  are  all  executors  of  their  father,  Thomas  Skill- 
man, and  are  all  interested  with  other  devisees  of  the  testa- 
tor, some  of  whom  are  minors,  in  the  proceeds  of  the  sale  of 
his  real  estate,  which,  as  executors,  they  were  by  the  will 
authorized  to  sell.  On  the  tenth  of  January,  1860,  the 
homestead  property  of  the  testator  was  exposed  to  sale  at 
public  vendue.  By  the  conditions  of  sale,  signed  .by  all  the 
executors,  the  title  was  to  be  made,  and  the  papers  exchanged 
on  the  second  of  April  then  next.  At  the  close  of  the  sale, 
the  purchaser  was  to  give  his  note,  with  approved  security, 
for  one- tenth  of  the  purchase  money,  payable  on  the  second 
of  April,  as  part  payment.  One  half  of  the  purchase  money 
was  to  be  paid  in  cash  on  the  delivery  of  the  title,  and  the 
balance  secured  by  a  bond  and  mortgage,  payable  in  one 
year  with  interest,  or  in  cash,  at  the  option  of  the  purchaser. 
The  property  was  struck  off  to  John  J.  Sutphen,  for  forty- 
five  hundred  dollars,  he  being  the  highest  bidder.  The  bid 
was  made  by  Sutphen  for  the  appellant,  and  at  his  request. 
The  conditions  of  sale  were  not  signed  by  Sutphen,  nor  was 
a  note  signed  in  compliance  with  the  conditions,  David  B. 


MAY  TEEM,  1862.  391 

Skillman  v.  Skillman. 

Skillman,  one  of  the  executors,  objecting  to  the  sale.  In 
March,  J8GO,  the  appellant  who  was  the  real  purchaser, 
contracted  for  the  sale  of  five  acres  of  the  premises,  and 
gave  the  vendee  possession.  On  the  first  of  April  he  took 
possession  of  the  land,  and  on  the  second  of  April,  in  com- 
pliance with  the  conditions,  he  appeared  at  the  place  desig- 
nated prepared  to  complete  the  purchase,  but  David  B.  Skill- 
man, one  of  the  executors,  refused  to  sign  the  deed.  After 
repeated  but  unsuccessful  efforts  to  procure  the  completion  of 
the  title,  on  the  thirty-first  day  of  December,  1860,  the  ap- 
pellant gave  to  his  co-executors  written  notice  that  he  would 
no  longer  hold  himself  responsible  for  the  purchase,  and  re- 
quested that  the  same  might  be  advertised  and  sold  without 
delay.  He  subsequently  proposed  to  accept  the  title  and 
pay  the  purchase  money  upon  certain  stipulations,  but  the 
offer  was  not  accepted  by  his  co-executors. 

The  Orphans  Court,  in  making  their  decree,  must  have 
proceeded  upon  the  ground  that  the  appellant  was  bound  by 
his  contract  or  by  his  subsequent  acts  for  the  purchase  of 
the  property,  and  that  they  were  authorized  to  compel,  upon 
his  part,  a  specific  performance  of  the  contract. 

They  were  clearly  in  error  upon  both  points. 

1.  There  was  clearly  no  valid  contract  of  sale.     Admitting 
that,  as  executor,  the  appellant  might  lawfully  purchase,  or, 
that  having  purchased,  he  could  not  object  to  his  own  illegal 
act,  treating  him  as  a  stranger  to  the  estate,  there  was  no 
valid  contract  for  the  purchase  of  the  land.     This  is  clearly 
proved  by  the  testimony  of  the  crier  at  the  sale,  and  of  Sut- 
phen,  the  person  at  whose  bid  the  property  was  struck  off. 
They  both  testify  that  there  was  no  valid  sale.     The  pur- 
chaser refused  to    sign  the    conditions,  because   one  of  the 
executors  refused  to  ratify  the  sale.     The  fact  that  the  con- 
ditions of  sale  were  not  signed,  nor  the  terms  of  sale  in  any 
respect  complied  with,  are  conclusive  upon  this  point. 

2.  No  subsequent  act  of  the  executor  bound  him.    Though 
not  bound  by  the  sale,  he  manifestly  was  desirous  of  acquiring 
title,  and  expected  to  do  so.     He  made  repeated  efforts,  by 


392  PREROGATIVE  COURT. 

Skillman  v.  Skillraan. 

himself  and  through  his  attorney,  to  this  end.  Witli  this 
expectation  he  took  possession  of  the  land,  and  contracted 
verbally  for  the  sale  of  part  of  it,  and  put  the  purchaser  in 
possession.  There  is  no  reason  to  doubt  that  this  was  done 
in  good  faith  with  the  expectation  of  obtaining  title.  He 
failed  in  that  object;  and  cannot  be  bound  by  these  acts  as 
part  performance,  or  as  an  acknowledgment  of  his  liability 
as  purchaser. 

3.  The  execution  of  the  deed  by  the  executor,  a  year  after 
the  purchase  was  made,  and  leaving  it  at  the  office  of  the 
attorney  of  the  purchaser,  after  he  had  given  distinct  notice 
that  he  would  not  accept  the  title,  was  a.  mere  nullity.     The 
attorney  had  no  authority  to  accept  the  deed.     He  was  not 
the  agent  of  the  purchaser   for  that    purpose.      He  so  ex- 
pressly testifies.     The  deed  has  never  been  tendered  to  or 
accepted  by  the  appellant,  or  by  Landis,  the  grantee  named 
in  the  deed. 

4.  The  purchase  of  the  property  by  one  of  the  executors 
was  clearly  illegal.     He  would  acquire  no  valid  title  if  the 
deed  were  delivered.     If  he  had  accepted  the  title,  and  agreed 
to  pay  the  price  stipulated,  he  might  not  be  permitted  in 
equity  to  disavow  the  act  and  refuse  to  account  for  the  pur- 
chase   money.     But   no   court  would    require   an   executor, 
against  his  will,  to  act  in  violation  of  his  duty  or  to  accept 
an  invalid  title. 

5.  Neither  the  Orphans  Court   nor    this   court   has   any 
power  to  enforce  a  specific  performance  of  the  contract,  ever, 
if  the  executor  was  bound  in  equity  to  a  specific  performance. 

That  question,  as  well  as  the  question  of  the  liability  of 
these  executors,  or  either  of  them,  for  a  failure  to  sell  the 
land  and  settle  the  estate,  belongs  to  another  tribunal. 

The  decree  of  the  court  below  must  be  in  all  things  re- 
versed. No  costs  should  be  allowed  to  either  party,  as 
against  the  other,  nor  should  either  party  be  suffered  to  have 
the  costs  of  this  controversy  between  themselves  allowed  as 
against  the  estate. 


CASES 


ADJUDGED 


THE  PREROGATIVE  COURT 


OF  THE 


STATE  OF  NEW  JERSEY," 
OCTOBER  TERM,  18G2. 


In  the  matter  of  the  assignment  of  dower  of  ANN  GARRISOX, 
widow  of  Richard  Garrison,  deceased. 

On  an  application  on  behalf  of  an  infant  devisee  to  this  court  to  set  aside 
the  report  of  commissioners  assigning  dower  to  the  widow  of  testator, 
on  the  ground  of  inequality  and  illegality  in  the  mode  of  making  the 
assignment,  it  was  held — 

That  the  statute  authorizing  the  assignment  of  dower  by  commissioners 
•was  not  designed  to  affect  the  legal  rights  or  interests  of  the  parties  in 
the  subject  matter,  nor  to  deprive  either  party  of  any  protection  against 
an  infringement  of  those  rights.  It  was  designed  to  leave  the  power  of 
the  court  over  the  proceedings  of  the  commissioners  so  broad  and  unli- 
mited as  to  afford  to  all  parties  concerned  as  full  protection  to  their 
rights  as  they  were  entitled  to  under  the  subsisting  modes  of  procedure, 
either  at  law  or  in  equity. 

The  court  must  have  power  under  the  statute  to  administer  all  the  relief, 
legal  or  equitable,  against  an  illegal  or  unjust  assignment  of  dower  to 
which  the  doweress  or  the  tenant  was  previously  entitled.  Relief  may 
be  granted,  at  the  instance  of  either,  against  any  act  of  the  commissioners 
prejudicial  to  the  legal  rights  of  any  party  concerned  in  the  proceedings. 

rn  this  case  testator  devised  to  his  son  and  to  each  of  his  three  grandchil- 
dren distinct  farms  and  portions  of  real  estate  subject  to  the  widow's 
right  of  dower.  The  commissioners  assigned  an  entire  farm,  which  was 
devised  to  one  of  the  minors  as  a  portion  of  the  widow's  dower.  Nearly 

393 


394  PREROGATIVE  COURT. 

In  matter  of  Ann  Garrison. 

one  half  of  the  land  devised  to  this  minor  was  assigned  to  the  widow  for 
her  dower,  and  much  less  than  one-third  in  value  of  the  land  of  other 
devisees  was  so  assigned,  although  the  whole  land  assigned  to  the  widow 
did  not  exceed  one-third  of  the  Avhole  land  of  which  testator  died 
seized.  Held,  that  the  assignment  was  illegal.  No  more  than  one-third 
of  the  land  of  each  tenant  must  he  assigned  to  the  widow  for  her  dower. 
Each  of  the  tenants  is  equally  entitled  to  relief,  whether  the  assignment 
is  illegal  and  unequal,  as  between  the  widow's  dower  and  the  entire  es- 
tate, or  only  as  hetween  the  dower  and  the  interest  of  the  several  tenants 
individually. 


Carpenter,  for  heir. 
Browning,  for  widow. 

THE  ORDINARY.  .  Richard  Garrison,  of  the  county  of 
Cumberland,  died  seized  of  a  large  real  estate,  consisting  of 
several  distinct  farms  and  parcels  of  land  situate  in  the  coun- 
ties of  Salem  and  Cumberland.  He  left  surviving  him  a 
widow,  a  son  by  his  surviving  wife,  and  three  infant  grand- 
children, the  children  of  a  deceased  daughter  by  a  former 
marriage.  By  his  will  he  gave  to  his  son  and  to  each  of  his 
three  grandchildren  distinct  farms  and  portions  of  real  estate 
subject  to  the  widow's  right  of  dower.  On  the  application  of 
the  guardian  of  the  three  grandchildren,  commissioners  were 
appointed  by  this  court  to  admeasure  and  set  off  the  one-third 
part  of  the  said  real  estate,  as  the  widow's  dower  therein. 
Dower  having  been  assigned,  application  is  now  made  by  the 
guardian,  on  behalf  of  the  infants,  to  set  aside  the  report  of 
the  commissioners,  and  the  assignment  made  by  them,  as 
illegal  and  unjust. 

It  appears,  by  the  evidence  which  has  been  taken  in  sup- 
port of  the  application,  that  the  commissioners  assigned  an 
entire  farm,  which  was  devised  to  one  of  the  minors,  as  a 
portion  of  the  widow's  dower.  It  also  appears  that  nearly 
one  half  of  the  entire  value  of  the  real  estate  devised  to  this 
minor,  consisting  of  the  said  farm  and  of  several  other  tracts 
and  pieces  of  arable,  marsh,  timber,  and  bush  landx  was  as- 
signed to  the  widow  as  her  dower,  while  much  less  than  one- 


OCTOBER  TERM,  1862.  395 


In  matter  of  Ann  Garrison. 


third  in  value  of  the  lands  of  the  other  devisees  were  assigned 
to  the  widow.  It  is  not  claimed  that  there  has  been  assigned 
to  the  widow  more  than  one  equal  third  in  value  of  the  entire 
real  estate  of  which  her  husband  died  seized,  but  that  the 
assignment  is  illegal  and  unjust  in  its  operations  upon  the 
rights  of  the  several  owners  of  the  land. 

Two  questions  were  raised  upon  the  argument,  viz.  1.  Has 
the  court  power  to  interfere  with  the  admeasurement  of  dower 
by  the  commissioners  for  the  reason  assigned.  2.  Is  the  as- 
signment illegal  or  inequitable. 

1.  It  is  conceded  that  there  are  grounds  upon  which  the 
court  may  deal  with  the  acts  of  the  commissioners.  The  power 
is  expressly  reserved  'by  the  statute.  The  report  of  the  com- 
missioners is  to  be  recorded,  if  approved,  and  confirmed  by 
the  court  which  appointed  them,  and  all  persons  concerned 
are  concluded  by  the  judgment  or  decree  of  the  court,  not  by 
the  report  of  the  commissioners.  The  limits  of  the  power  of 
the  court  over  the  proceedings  of  the  commissioners  are  not 
defined  by  the  statute.  The  design  of  the  legislature,  in 
authorizing  this  mode  of  proceeding,  was  doubtless  to  furnish 
a  simple,  economical,  and  expeditious  mode  of  assigning 
dower  without  resort  to  the  more  formal  and  dilatory 
methods  previously  in  use.  The  statute  was  not  designed  to 
affect,  nor  does  it  purport  to  aifect  the  legal  rights  or  inter- 
ests of  the  parties  in  the  subject  matter,  nor  to  deprive 
either  party  of  any  protection  against  an  infringement  of 
those  rights.  It  was  doubtless  designed  to  leave  the  power 
of  the  court  over  the  proceedings  of  the  commissioners  so 
broad  and  unlimited  as  to  afford  to  all  parties  concerned  as 
full  protection  to  their  rights  as  they  were  entitled  to  un- 
der the  subsisting  modes  of  procedure,  either  at  law  or  in 
equity.  The  court  must  have  power,  under  the  statute,  to 
administer  all  the  relief,  legal  or  equitable,  against  an  illegal 
or  unjust  assignment  of  dower  to  which  the  doweress  or  the 
tenant  was  previously  entitled.  Relief  may  be  granted,  at 
the  instance  of  either,  against  any  act  of  the  commissioners 
prejudicial  to  the  legal  rights  of  any  party  concerned  in  the 


39C  PREROGATIVE  COURT. 

In  matter  of  Ann  Garrison. 

proceedings.  It  is  urged,  that  although  the  court  may  legally 
interfere  with  the  proceedings  where  more  or  lass  than  one- 
third  of  the  entire  real  estate  in  which  the  widow  is  entitled 
to  dower  has  been  assigned  to  her;  vet  where  the  admeasure- 
ment of  dower,  as  between  the  widow  and  the  heirs  or  de- 
visees of  the  entire  estate  is  just,  and  proportioned  to  their 
respective  rights,  the  court  have  no  power  of  control,  how- 
ever unjust  or  unequal  the  assignment  may  be  in  its  opera- 
tions upon  the  interests  of  the  several  tenants.  This  is  un- 
questionably placing  the  construction  of  the  statute  upon  too 
narrow  ground.  It  would  practically  operate  to  effect  a  radi- 
cal change  in  the  legal  rights  of  the  doweress  and  the  tenants. 

At  the  common  law,  if  the  freehold  of  which  dower  is  de- 
mandablc  be  in  the  possession  of  divers  persons  by  different 
titles,  the  wife,  in  a  writ  of  dower  brought  against  one  of 
them,  shall  recover  but  a  third  part  of  the  freehold  which  is 
in  his  possession,  so  that  the  tenant  of  parcel  of  the  freehold 
of  which  the  woman  is  dowable  shall  not  be  charged  accord- 
ing to  the  possession  of  the  whole  freehold  against  his  will. 
Perkins,  §  423 ;  9  Viner'a  Ab.  158,  Dower  X  18. 

According  to  common  right,  the  widow  ought  to  have  only 
a  third  part  of  every  manor  for  her  dower,  though  it  may  be 
assigned  otherwise  by  consent.  Perkins,  §  330;  9  Viner's 
Ab.  260,  Dower  Y  4 ;  Bacon's  Ab.,  Dower  D  2 ;  Park  on 
Dower  255,  2G2  ;  2  Sdlon's  Prac.  211. 

If  the  sheriff,  instead  of  a  third  part,  assign  a  moiety,  the 
tenant  has  a  remedy  against  the  sheriff  by  assize,  or  he  may 
have  a  scirc  facias  against  the  sheriff  to  assign  de  novo.  9 
Vincr's  Ab.  258,  Dower  X  17. 

And  if  the  assignment  is  fraudulently  made  by  the  sheriff, 
equity  will  relieve.  Hoby  v.  Hoby,  1  Vemon  218. 

Had  the  widow  sought  to  recover  her  dower  by  writ  of 
dower  unde  nih'd  habet,  she  must  have  proceeded  against 
each  tenant  separately,  and  could  only  have  recovered  the 
one  equal  third  of  each  separate  tract  or  parcel.  Perkins 
423;  Fosdick  v.  Gooding,  1  Grcenl.  30;  1  WasJib.  on  Rail 
Estate  220. 


OCTOBER  TERM,  1862.  397 


In  matter  of  Ann  Garrison. 


So  under  the  statute,  either  any  heir  or  the  guardian  of 
any  minor  child  entitled  to  an  estate  in  the  land,  or  any  pur- 
chaser may  apply  for  the  appointment  of  commissioners  to 
assign  dower  in  the  land  in  which  he  is  interested.  And  the 
guardian  of  any  minor  child  or  any  purchaser  conceiving 
himself  aggrieved  by  the  proceedings,  judgment,  or  decree 
of  an  Orphans  Court  under  the  act  may  appeal.  Nix.  Dig. 
229,  §  17,  20. 

It  could  not  have  been  the  design  of  the  legislature,  by 
permitting  the  title  of  the  widow  to  dower  in  all  the  lands  of 
which  the  husband  died  seized  to  be  admeasured  and  assigned 
by  one  proceeding,  to  deprive  the  tenants  of  any  protection 
to  which  they  would  have  been  entitled  if  proceeded  against 
severally,  as  at  common  law.  Nor  can  a  guardian,  by  ap- 
plying for  admeasurement  of  dower  under  the  statute  iu 
behalf  of  all  the  minor  children,  deprive  any  minor  of  the 
protection  to  which  he  would  have  been  entitled  if  the  ap- 
plication had  been  made  on  his  behalf  alone.  And  each  of 
the  tenants  is  equally  entitled  to  relief,  whether  the  assign- 
ment is  illegal  or  unequal,  as  between  the  widow's  dower  and 
the  entire  estate,  or  only  as  between  the  dower  and  the  in- 
terest of  the  several  tenants  individually.  The  principle  is 
clearly  stated  and  vindicated  in  the  case  of  The  Creditor  of 
Scott  v.  Scott,  I  Bay's  R.  504.  See,  also,  Wood  v.  Lee,  5 
Monroe  50. 

It  is  evident  that  the  assignment  of  dower,  as  against 
Charles  Stretch,  the  tenant  in  fee  of  a  part  of  the  land  in 
which  the  widow  is  dowable,  is  both  illegal  and  inequitable. 
The  lands  devised  to  him  by  his  grandfather,  the  husband  of 
the  dowercss,  consists  of  one  entire  farm  and  several  other 
distinct  tracts  or  parcels  of  land.  The  commissioners,  in- 
stead of  assigning;  to  the  widow  the  one  equal  third  of  each 

O  O  * 

separate  tract,  or  even  the  one  equal  third  in  value  of  all  the 
tracts,  have  assigned  to  her  the  entire  farm,  and  nearly  one 
half  in  value  of  all  the  land  devised  to  the  minor.  The  as- 
signment is  in  violation  of  common  right,  illegal,  and  unjust.. 
In  making  it,  the  commissioners  exceeded  the  powers  con- 
VOL.  ii.  2  B 


398  PREROGATIVE  COURT. 

II  il  Iyer  v.  Schenck. 

ferred  upon  them  by  their  appointment.  They  were  bound, 
in  the  performance  of  their  duties,  to  have  regard  to  the 
rights  of  tiie  tenants  of  the  freehold,  and  not  to  exercise  their 
powers  in  violation  of  those  rights. 

This  decision  in  no  wise  trenches  upon  the  title  of  the  wi- 
dow to  the  enjoyment  of  all  her  rights  as  doweress.  But 
those  rights  are  not  to  be  enjoyed  or  enforced  at  the  expense 
of  the  rights  of  the  tenants  of  the  freehold.  She  is  entitled 
to  be  endowed,  as  of  common  right,  of  the  one  equal  third  in 
value  of  each  distinct  farm  or  tract  of  land.  The  purchaser 
of  etich  distinct  tract  or  parcel  takes  subject  to  that  right. 
And  if  the  dower  is  otherwise  assigned  to  the  prejudice  of 
the  heir  or  purchaser,  he  is  entitled  to  the  protection  of  the 
court.  Nor  does  this  decision  at  all  conflict  with  the  opinion 
of  the  Supreme  Court  in  Laird  v.  Wilson,  Pcnn.  281.  In 
that  case  the  land  of  which  the  widow  was  dowable  consisted, 
at  the  death  of  the  husband,  of  one  entire  tract.  Admitting 
the  authority  of  that  case  in  its  fullest  extent,  in  regard  to 
which  it  is  not  intended  to  express  any  opinion,  it  does  not 
sustain  the  legality  of  the  proceedings  in  this  cause. 

The  report  and  proceedings  of  the  commissioners  must  be 
Bet  aside. 

CITED  in  Macknet  v.  Madcnet,  9  C.  E.  Gr.  451. 


MARY  HII.LYER,  appellant,  and  JESSE  F.  SCHENCK,  appellee. 

The  right  of  appeal  from  a  sentence  or  decree  of  the  Orphans  Court  reject- 
ing or  admitting  a  will  to  probate,  is  by  the  statute  made  conditional 
upon  its  being  demanded  within  thirty  days  after  the  sentence  or  decree 
of  the  Orphans  Court. 

The  thirty  days  are  to  be  computed  not  from  the  time  the  decision  is  an- 
nounced, but  from  the  time  the  decree  was  reduced  to  writing,  signed 
and  filed,  and  entered  upon  the  minutes  of  the  court. 

Tlie  statute  requiring  the  decrees  of  the  Orphans  Court  to  be  signed  by  the 
presiding  judge  (Nix.  Dig.  588,  \  63,)  was  designed  rather  to  regulate 
the  mode  in  which  the  decree  should  be  authenticated,  and  its  existence 
verified,  than  to  prescribe  an  essential  requisite  to  the  existence  or  va- 
lidity of  the  decree.  The  decree,  having  been  duly  made  and  filed,  may 
be  subsequently  authenticated  by  the  signature  of  the  presiding  judge. 


OCTOBER  TERM,  1862.  399 

Hillyer  v.  Schenck. 

The  demand  and  filing  of  the  appeal  in  the  court  below,  and  not  the  pe- 
tition of  appeal  in  this  court,  is  the  demand  of  appeal  intended  by  the 
act,  and  which  alone,  is  required  to  be  made  within  thirty  days. 

The  time  of  filing  the  petition  of  appeal  is  regulated  by  rule  of  court,  and 
whenever  the  rule  has  not  been  complied  with,  the  court  may,  in  the 
exercise  of  its  discretion,  release  the  party  from  the  effects  of  h's  lac^ts. 

That  the  appellant,  by  her  proctor,  immediately  on  the  decision  being  an- 
nounced by  the  court,  and  before  the  decree  was  framed  or  its  precise 
terms  settled,  gave  notice  orally,  in  the  presence  of  the  adverse  proctcr, 
that  she  intended  to  appeal  from  said  decision,  is  not  a  sufficient  de- 
manding of  an  appeal. 

U  seems  that  a  mere  oral  demand  of  appeal,  without  any  instrument  of 
appeal  being  prepared,  or  entry  made  on  the  minutes,  or  some  order 
made  by  the  court,  is  not,  according  to  the  practice  in  this  state,  a  law- 
ful demand  of  an  appeal. 

An  order  made  by  the  Orphans  Court  more  than  thirty  days  after  the  de- 
cree was  signed  and  filed,  reciting  that  an  appeal  had  been  demanded  in 
open  court,  and  directing  that  the  said  appeal  be  entered,  and  that  re- 
turn be  made  therein  according  to  law  and  the  practice  of  the  court,  is 
not  conclusive  that  an  appeal  had  been  duly  demanded,  when  it  other- 
wise appears  that  the  only  demand  of  appeal  actually  made,  was  an  oral 
declaration  of  the  appellant's  proctor  that  he  intended  to  appeal. 

The  principle  is  of  universal  application,  that  the  validity  of  an  appeal  is 
to  be  decided  by  the  appellate  tribunal. 

Where  the  court  below  met  by  formal  appointment  to  decide  the  cause,  and 
announced  the  decision  in  the  hearing  of  both  proctors,  and  immediately 
and  publicly  adjourned  in  the  presence  of  the  proctor  of  the  aggrieved 
party  to  an  early  day,  that  the  decree  might  be  formally  prepared  for 
signature,  and  again  met  on  that  day,  and  signed  the  decree,  which  was 
immediately  placed  on  file,  and  there  remained  until  after  the  time  for 
appealing  had  expired,  no  actual  notice  of  the  signing  of  the  decree  wai 
necessary,  nor  is  it  material  whether  the  party  aggrieved  or  her  proctor 
was  actually  in  court  when  the  decree  was  signed.  Parties  are  bound  to 
take  notice  of  the  acts  and  decrees  of  th«  court  regularly  made. 

If,  however,  the  court  had  met,  and  made  the  decree  privily,  or  without 
full  notice  to  the  appellant,  or  if  the  fact  of  the  decree  had  been  inten- 
tionally concealed  from  the  proctor  of  the  party  aggrieved,  or  its  exist- 
ence denied,  or  any  artifice  or  fraudulent  practice  resorted  to  to  deprive 
him  of  the  opportunity  of  appeal,  the  right  of  appeal  would  not  hay« 
been  lost. 


Luepp  and  Vroom,  for  appellant. 

That  there  was  no  decree,  because  it  was  not  signed  bj 
presiding  judge.     Nix.  Dig.  171,  §  4;  Ibid.  588,  §  15,  53. 


400  PKEROGATIVE  COURT. 

Hillyer  v.  Schenck. 

As  to  the  time  within  which  an  appeal  must  be  demanded. 
Nix.  Dig.  579,  §  16  ;  Clark  v.  Raines,  2  Green's  Ch.  R.  136. 

The  statute  gives  a  right  of  appeal  for  six  mouths.  Nix. 
Dig.  585,  §  45. 

That  right  cannot  be  taken  away  by  rule  of  court.  Car- 
penter v.  Titw,  4  Hoist.  90  ;  Ferguson  v.  Kays,  1  Zab.  43  1  ; 
Allen  v.  Joyce,  3  Halst.  135  ;  State  v.  Judge  of  Bergen  Pleas, 
Penn.  737. 

Speer,  for  respondent,  cited  Nix.  Dig.  579,  §  16;  Caldwell 
v.  Mayor  of  Albany,  9  Paige  572;  Barclay  v.  Brown,  7 
Paige  245. 

As  to  what  is  sufficient  demand  of  appeal.  J5ay  v.  Van 
Rensselaer,  1  Paige  423;  -Stone  v.  Morgan,  10  Pa/ye  615; 
v.  AWe,  2  Gram's  Ch.  R.  559. 


THE  ORDINARY.  This  case  comes  before  the  court  upon 
a  motion,  on  the  part  of  the  appellant,  for  an  arder  upon  the 
Orphans  Court  to  send  up  the  papers,  and  upon  a  cross- 
motion  to  dismiss  the  petition  of  appeal.  The  sole  question 
at  issue  is,  whether  the  appeal  was  demanded  within  the  time 
prescribed  by  the  statute. 

The  material  facts  are  not  controverted.  The  decision  of 
the  Orphans  Court,  refusing  to  admit  the  instrument  pro- 
pounded as  the  will  of  Josiah  Schenck  to  probate,  was  an- 
nounced by  the  court  on  the  twenty-fifth  of  March,  1862, 
in  the  presence  of  the  proctors  of  the  respective  parties.  The 
proctor  of  the  appellant  thereupon  stated  verbally  that  he 
intended  to  appeal  from  the  decision.  The  court  then  ad- 
journed, in  the  presence  of  the  proctors  of  both  parties,  to 
the  thirty-first  of  March,  when  the  decree  was  signed,  and 
filed  with  the  surrogate. 

On  the  fifth  of  May,  the  following  order  was  made,  and 
filed  in  the  cause.  "  The  appeal  in  the  above  cause  having 
been  demanded  in  open  court,  it  is  ordered  that  said  appeal 
be  entered,  and  that  return  be  made  therein  according  to  law 
and  the  practice  of  the  court" 


OCTOBER  TERM,  1862.  401, 

Hillyer  v.  Schenck. 

On  the  third  of  June,  application  was  made  by  the  proctor 
of  the  executrix,  by  whom  the  will  was  offered  for  probate, 
to  the  court,  for  an  order  directing  that  the  costs  and  charges 
incurred  by  her  should  be  charged  upon  the  estate,  and  that 
the  original  decree  should  be  amended  in  that  respect.  The. 
court  refused  to  alter  the  original  decree,  but  made  an  order 
that  the  costs  should  be  paid  out  of  the  estate. 

The  petition  of  appeal  was  filed  in  this  court  on  the 
eighteenth  of  November,  1 862. 

A  decree  of  the  Orphans  Court,  rejecting  or  admitting  a 
will  to  probate,  is  subject  to  an  appeal  to  the  Prerogative 
Court,  "  if  demanded  by  any  of  the  parties  within  thirty  days 
after  the  sentence  or  decree  of  the  Orphans  Court."  Nix. 
Dig.  579,  §  16. 

The  right  of  appeal  is  made  conditional,  upon  its  being 
demanded  within  the  time  limited  by  the  statute. 

This  provision  is  not  affected  by  the  sixth  section  of  the 
act  of  1849.  It  is  expressly  provided,  by  the  seventh  sec- 
tion of  that  act,  that  it  shall  not  be  held  to  apply  to  cases 
where,  by  law,  the  time  within  which  appeals  shall  be  taken 
from  the  orders,  sentences,  and  decrees  of  the  Orphans  Court 
to  the  Prerogative  Court  is  now  limited.  Nix.  Dig.  585. 

Was  the  appeal  in  this  case  demanded  "  within  thirty  days 
after  the  sentence  or  decree  of  the  Orphans  Court?"  The 
thirty  days  are  to  be  computed,  not  from  the  time  the  deci- 
sion is  announced,  but  from  the  time  the  decree  was  reduced 
to  writing,  signed  and  filed,  or  entered  upon  the  minutes  of 
the  court.  Until  then  there  was  no  decree.  And  if  the  de- 
cree was  formally  signed,  the  only  mode  in  which  the  ad- 
verse party  can  be  apprized  of  its  existence  is  by  its  being 
placed  on  the  files  of  the  court.  This  was  done  on  the  31st 
of  March. 

It  is  objected  that  no  decree  was  lawfully  made,  inasmuch 
as  it  was  not  signed  by  the  president  judge.  It  is  shown 
that  the  presiding  judge  heard  the  argument,  and  concurred 
in  the  decree  as  pronounced.  The  statute  requiring  the  de- 
crees of  the  Orphans  Court  to  be  signed  by  the  president 


402  PREROGATIVE  COURT. 

Hillyer  v.  Schenck. 

judge,  and  declaring  that  the  record  thereof,  or  a  duly  certi- 
fied copy  of  such  record,  shall  be  evidence  in  all  courts  of 
this  state  (Nix.  Dig.  588,  §  63,)  was  designed  rather  to  regu- 
late the  mode  in  which  the  decree  should  be  authenticated, 
and  its  existence  verified,  than  to  prescribe  an  essential  re- 
quisite to  the  existence  or  validity  of  the  decree.  If  the 
signature  of  the  presiding  judge  is  essential  to  the  existence 
of  the  decree,  it  follows  that  no  decree  can  be  made  by  the 
Orphans  Court  in  the  absence  of  the  presiding  judge.  This 
cannot  be  the  true  construction  of  the  act.  The  decree, 
having  been  duly  made  and  filed,  may  be  sul>sequently  au- 
thenticated by  the  signature  of  the  presiding  judge.  This  I 
understand  to  be  the  general,  if  not  the  uniform  course  of 
practice  that  has  prevailed  since  the  act  of  1855  went  into 
oj>eration.  Decrees  are  constantly  made  and  signed  by  the 
judges  who  hold  the  court  in  the  absence  of  the  presiding 
judge. 

What  constitutes  an  appeal,  or  the  demand  of  an  appeal, 
has  been  the  subject  of  much  discussion  and  of  some  conflict 
of  opinion. 

In  Mecray  v.  Richardson,  at  July  term,  1833,  cited  in  3 
Green's  Ch.  It.  139,  the  appeal  was  dismissed  on  the  ground 
that  the  petition  of  appeal  had  not  been  filed  in  this  court 
within  the  thirty^days  prescribed  by  the  statute.  And  in 
Delany  v.  Noble,  at  October  term,  1831,  the  petition  of  ap- 
peal not  having  been  filed  in  this  court  within  the  thirty 
days,  it  was  admitted  by  counsel,  that  if  the  case  came  within 
the  provisions  of  the  statute  the  appeal  was  too  late,  and 
must  be  dismissed.  The  Ordinary,  deeming  the  case  to  be 
within  the  provision  of  the  statute,  and  acting,  probably, 
rather  upon  the  admission  of  counsel,  than  upon  a  careful 
consideration  of  the  question,  dismissed  the  appeal.  In  the 
more  recent  case  of  Clark  v.  Haines,  3  Green's  Ch.  R.  136, 
the  Ordinary  refused  to  dismiss  the  appeal  upon  this  ground, 
holding  that  the  demand  and  filing  of  the  appeal  in  the  court 
below,  and  not  the  petition  of  appeal  in  this  court,  was  the 
demand  of  appeal  intended  by  the  act,  and  which,  alone,  is 


OCTOBER  TERM,  1862.  403 

Hillyer  v.  Schenck. 

required  to  be  made  within  thirty  days.  This  I  entertain 
no  doubt  is  the  true  construction  of  the  statute.  The  demand 
of  an  appeal  is  always  made  to  the  tribunal  by  whom  the 
cause  is  decided,  and  from  whose  decree  the  appeal  is  taken. 

This  will  appear  very  clearly  by  reference  to  the  practice 
of  the  ecclesiastical  courts,  from  which  our  Orphans  Court 
and  Prerogative  Court  practice  is  mainly  derived.  Thus,  it 
is  said,  "  in  these  matters  of  appeal  there  are  four  times  to 
be  considered.  1.  The  time  of  interposing  the  appeal,  and 
that  is  ten  days,  within  which  time  the  appellant  ought  to 
appeal  either  before  the  judge  by  whom  he  is  grieved  or  be- 
fore a  notary.  2.  The  time  of  desiring  apostles,  or  letters 
dimissory  to  the  appellate  court,  which  is  thirty  days,  within 
which  time  the  letters  must  be  requested  either  from  the 
judge  who  decided  the  cause,  or,  if  he  be  not  found  in  court, 
before  a  notary.  3.  The  time  of  presenting  himself  before 
the  judge  (to  whom  it  is  apjiealed)  with  the  appeal.  4.  The 
time  of  prosecuting  the  appeal  so  interposed,  which  is  one 
year,  an1 3.  sometimes  two  years,  from  the  time  of  the  appeal 
interposed."  Comet's  Pme.  186,  191,  192,  part  5,  ch.  1,  § 
1,  I  1,  §  2,  1  1,  If  3;  Cockburns  Prac.  234,  Appendix  I, 
117. 

There  is  an  obvious  analogy  between  this  practice  and  our 
own.  Tims  the  appellant  is  required — 1.  To  appeal  within 
thirty  days  after  the  decree.  2.  To  cause  the  proceeding  to 
be  authenticated  and  returned  to  this  appellate  court  within 
twenty  days  from  the  time  of  entering  the  appeal  in  the  court 
below.  3.  To  file  his  petition  of  appeal  to  this  court  with 
the  register  within  fifteen  days  after  entering  the  appeal  in 
the  court  below.  4.  To  prosecute  his  appeal  within  the  time 
limited  by  the  rules  of  this  court. 

If  there  remained  room  for  the  possibility  of  a  doubt  upon 
this  subject,  it  would  be  removed  by  the  recognized  form  of 
appeal,  both  verbal  and  written,  in  the  ancient  precedents. 
Thus,  it  is  said,  "the  party  against  whom  sentence  is  pro- 
nounced may  (at  the  very  same  time  of  pronouncing  it,  and 
before  the  judge  doth  proceed  to  other  things)  appeal  with 


404  PREROGATIVE  COURT. 

Hillyer  v.  Schenck. 

the  living  voice  or  by  word  of  mouth  delivered  and  spoke, 
at  the  acts  of  court,  before  the  said  judge  who  doth  pro- 
nounce the  sentence  (who  is  called  the  judge  from  whom  it 
is  appealed).  And  this  appeal  he  may  interpose  in  manner 
and  form  following,  viz. :  I  do  dissent  from  the  pronouncing 
of  this  sentence,  and  do  protest  as  to  the  nullity  thereof,  and 
appeal  from  the  same,  as  null,  invalid,  and  unjust,"  &c.  A 
somewhat  analogous  form  is  adopted  for  the  written  appeal, 
clearly  showing  that  the  appeal  is  made  to  the  judge  a  quo. 
Consefs  Prac.,  part  5,  ch.  2,  §  4,  5. 

All  appeals  from  grievances  ought  to  be  made  in  writing, 
and  interposed  within  ten  days  after  sentence  before  the  judge 
who  pronounced  the  sentence,  if  he  can  be  come  at,  if  not, 
before  a  notary  public  and  proper  witnesses.  €bckburn'& 
Prac.  234,  ch.  36,  §  1,  3,  4.  See  also,  Proctors  Prac.  p. 
5S,part  2,  appeals  159,  160,  acts,  part  3;  Cockbum's  Prac., 
Appendix  23,  4th  inst.  340,  ch.  74. 

I  should  not  have  deemed  it  necessary  to  say  so  much  upon 
a  point,  which  I  regard  as  entirely  free  from  doubt,  had  there 
not  prevailed  some  confusion  and  uncertainty  in  our  books 
upon  the  subject,  which  has  served  to  create  embarrassment 
in  practice. 

The  failure,  therefore,  of  the  party  to  file  his  petition  of 
appeal  within  thirty  days  from  the  time  of  the  decree  is 
clearly  not  within  the  provision  of  the  statute.  If  the  ob- 
jection were  confined  to  this  point  alone,  I  should  have  no 
difficulty  in  sustaining  the  appeal.  The  time  of  filing  the 
petition  of  appeal  is  regulated  by  rule  of  court;  and  wherever 
the  rule  has  not  been  complied  with  the  court  may,  in  the 
exercise  of  its  discretion,  release  the  party  from  the  effects 
of  his  laches.  In  this  case,  I  think  the  delay  in  filing  the 
petition  of  appeal  is  satisfactorily  accounted  for,  and  creates 
uo  embarrassment  in  the  way  of  sustaining  the  appeal.  I  do 
not  understand  that  this  objection  is  seriously  relied  upon  by 
the  appellee. 

The  difficulty  urged  against  the  validity  of  the  appeal  is, 
that  it  was  not  taken  or  demanded  before  the  Orphans  Court 


OCTOBER  TERM,  1862.  405 

Hillyer  v.  Schenck. 

within  the  time  limited  by  the  statute.  Two  circumstances 
are  relied  upon  to  support  the  appellant's  claim  to  having  ap- 
pealed in  compliance  with  the  requirements  of  the  statute, 
viz.  1.  That  the  appellant,  by  her  proctor,  immediately  on 
the  decision  being  announced  by  the  court,  gave  notice  in 
the  presence  of  the  proctor  of  the  caveator  that  she  intended 
to  appeal  from  said  decision.  2.  That  the  court  subsequently 
ordered  to  appeal  to  be  entered,  and  return  made  therein,  ac- 
cording to  law  and  the  practice  of  the  said  court. 

It  is  urged — 1st,  that  an  appeal  may  be  made  by  word  of 
mouth  or  viva  voce  in  open  court,  and  that  such  appeal  is  as 
valid  as  if  made  in  writing. 

The  statute,  it  is  admitted,  prescribes  no  form  of  appeal. 
It  simply  requires  the  appeal  to  be  made,  without  declaring 
how  it  shall  be  made  or  what  it  is.  The  subsisting  practice 
of  the  courts  must  have  been  within  the  contemplation  of  the 
legislature,  as  in  requiring  a  summons  to  ba  issued,  an  affi- 
davit to  be  made,  or  a  notice  to  be  given.  The  legislature 
speaks  of  things  in  esse — of  matters  familiar;  and  we  turn  to 
the  established  practice  of  the  courts  to  learn  what  they  are. 
I  am  not  aware  that  an  appeal  from  the  decree  of  any  tri- 
bunal, legal,  equitable,  or  ecclesiastical,  ever  has  been,  or 
could  be  taken  by  mere  oral  declaration.  Whatever  may  be 
its  form,  it  must  be  accompanied  by  some  act  or  evinced  by 
some  writing  which  shall  give  it  formal  solemnity,  and  ren- 
der it  readily  susceptible  of  proof.  Thus,  an  appeal  from  a 
justice  of  the  peace  may  be  demanded  viva  voce,  and  entered 
upon  the  docket  of  the  justice,  by  simply  tendering  the  bond 
and  affidavit  required  by  the  statute.  And  this  is  certainly 
in  accordance  with  the  spirit  of  our  laws  and  the  genius  of 
our  legal  institutions.  It  is  not  necessary  that  the  statute 
should  require  a  summons  or  a  notice  to  be  in  writing,  because 
they  are  always  .written  and  not  verbal;  and  the  same,  I  ap- 
prehend, is  true  of  appeals  to  the  Prerogative  Court — they 
have  always  been  written  or  manifested  by  some  formal  so- 
lemnity. In  this  state,  so  far  as  my  inquiries  have  extended 
or  my  experience  at  the  bar  or  upon  the  bench  has  gone,  ap- 


406  PREROGATIVE  COURT. 

Hillyer  v.  Scbenck. 

]>cals,  without  exception,  have  been  in  writing.  The  form 
of  the  writing  varies  greatly;  but  in  all  cases  the  fact  of  the 
appeal  is  evinced  by  a  written  instrument  tendered  to  the 
court  and  filed  by  the  surrogate. 

As  already  said,  by  the  ancient  practice  of  the  ecclesiasti- 
cal courts,  an  appeal  might  be  either  in  writing  or  viva,  voce. 
CanxeCs  Prac.  186,  229,  part  5,  ch.  1,  §  1,  ch.  2,  §  1. 

The  appeal  viva  voce,  however,  does  not  rest  upon  a  mere 
demand  of  appeal ;  but  the  appellant,  after  declaring  that  he 
does  appeal,  and  desires  that  the  apostles,  or  letters  dimissory 
may  be  given  him,  he  proceeds — "and  of  this  nullity,  I  do 
also  equally  and  principally  complain  to  you,  and  require 
you,  the  notary  public,  (that  is  the  register  or  writer  of  the 
acts)  to  draw  me  a  public  instrument  upon  this  appeal  thus 
by  me  interposed ;  and  I  desire  the  witnesses  here  present  to 
give  their  testimony  upon  the  premises."  The  register  there- 
upon prepares  the  instrument,  inserting  the  names  of  the 
witnesses.  Consd's  Prac.  234,  part  5,  ch.  2,  §  2,  ^  4  ;  Cock- 
bum's  Prac.  246,  ch.  37,  §  1,  1  3,  4,  Appendix  //,  24. 

Thus  it  will  be  seen  that  the  appeal  viva  voce  was  not  only 
made  in  the  most  formal  manner,  but  that  it  was  immediately 
reduced  to  writing  and  verified  by  witnesses. 

It  would  be  a  practice  somewhat  in  conformity  with  this, 
if  upon  the  decree  being  made,  the  party  aggrieved  should 
at  once,  in  the  presence  of  the  court,  declare  that  he  ap- 
pealed, and  the  fact  should  at  once  be  entered  upon  the  min- 
utes, and  a  return  be  ordered.  Nothing  of  the  kind  was 
attempted  by  the  appellant  in  this  case.  No  instrument  of 
appeal  was  prepared — no  entry  made  upon  the  minutes — no 
order  made  by  the  court.  Before  the  decree  was  framed,  or 
its  precise  terms  settled,  the  party  declared,  not  that  he  ap- 
]>ealed,  but  that  he  intended  to  appeal  thereafter.  No  appeal 
was  in  fact  made  even  viva  voce — no  instrument  in  writing 
was  prepared — no  act  done  to  constitute  an  apj>cal. 

On  the  fifth  of  May,  more  than  thirty  days  after  the  de- 
cree had  been  signed  and  filed,  the  following  order  was  made 
by  the  court :  "  The  appeal  in  the  above  cause,  having  been 


OCTOBER  TERM,  1862.  407 

Hillyer  v.  Schenck. 

demanded  in  open  court,  it  is  ordered  that  said  appeal  be  en- 
tered, and  that  return  be  made  therein  according  to  law  and 
the  practice  of  the  court."  This  order,  it  is  admitted,  was 
made  and  signed  in  the  absence  of  the  proctor  of  the  cavea- 
tor,  without  notice  to  him,  by  three  judges,  no  one  of  whom 
participated  in  the  hearing  of  the  appeal  or  in  making  the 
decree.  It  has  not  since  been  followed  up  or  acted  upon  by 
the  court.  A  return  has  not  been  made  according  to  law  or 
the  practice  of  the  court.  It  would  be  dangerous  surely  to 
rest  the  fact  of  an  appeal  upon  an  act  thus  done.  But  as- 
suming it  to  have  been  made  in  entire  good  faith,  as  I  doubt 
not  that  it  was,  how  can  it  constitute  a  valid  appeal  ?  Stand- 
ing alone,  the  recital  and  order  can  in  themselves  constitute 
no  appeal  within  the  statute.  If  the  appeal  was  made  at  the 
time  of  making  the  order,  as  it  is  fair  to  infer  that  it  was,  it 
can  amount  to  nothing,  for  it  was  too  late,  the  thirty  days 
having  expired.  Nor  can  it  aid  in  converting  the  viva  voce 
declaration  made  at  the  time  of  pronouncing  the  decision 
into  a  valid  appeal,  for  the  appeal  must  be  accomplished — a 
perfect  valid  act — within  the  thirty  days.  But  it  is  urged 
that  the  court  below  have  themselves  certified  that  an  appeal 
was  demanded  in  open  court,  and  have  made  an  order,  based 
upon  that  fact,  which  this  court  must  recognize.  There  is 
much  force  in  this  suggestion.  And  if  the  evidence  of  the 
appeal  rested  upon  this  order  alone,  the  court  would  at  least 
order  the  papers  to  be  returned,  that  it  might  be  seen  when 
and  how  that  appeal  was  demanded.  But  it  was  admitted, 
upon  the  argument  by  the  counsel  of  the  appellant,  and  is 
expressly  averred  in  the  petition  of  appeal,  that  the  appeal 
thus  alleged  to  have  been  made,  and  ordered  to  be  entered, 
was  the  oral  declaration  made  upon  the  decision  of  the  case, 
and  that  no  other  appeal  was  ever  made.  Admitting,  then, 
that  this  order  was  made  by  judges  fully  cognizant  of  the 
fact  recited  in  the  order;  that  it  was  made  upon  due  conside- 
ration, and  under  circumstances  which  entitle  it  to  the  force 
of  an  express  adjudication,  that  the  viva  voce  declaration 
was  a  valid  appeal  within  the  meaning  of  the  statute — the 


403  PREROGATIVE  COURT. 

Hillyer  v.  Schenck. 

facts  being  ascertained — the  question  is  reduced  to  this,  by 
whom  is  the  validity  of  the  appeal  to  be  determined?  By 
the  judge  from  whom  or  to  whom  the  appeal  is  taken.  I 
understand  the  principle  to  be  of  universal  application,  that 
the  validity  of  an  appeal  is  to  be  decided  by  the  appellate 
tribunal. 

If,  therefore,  the  court  below  had  formally  decided  that  an 
appeal  iiva  voce,  without  an  act  done,  an  entry  made,  or  a 
memorandum  written  at  the  time,  is  a  valid  appeal,  it  would 
not  affect  the  result. 

I  should  have  been  gratified  if  the  court  below  had,  in 
compliance  with  their  order,  sent  up  the  original  papers,  that 
they  might  have  been  seen  and  inspected  here.  But-  as  there 
is  in  reality  no  disputed  fact  in  the  case,  an  order  now  upon 
the  court  below  to  return  the  papers  would  create  additional 
costs  and  be  of  no  practical  benefit. 

There  is  another  fact  in  the  cause  entitled  to  consideration, 
viz.  That  the  proctor  of  the  appellant  was  not  present  when 
the  decree  was  signed,  and  that  he  had  no  actual  notice  of 
its  existence  till  the  time  for  appealing  had  expired.  If  the 
court  had  met,  and  made  the  decree  privily  or  without  full 
notice  to  the  appellant,  clearly  her  right  of  appeal  would  not 
have  been  lust.  Cockburn's  Prac.  352,  ch.  39,  §  1,  19. 

Much  more,  if  the  fact  of  the  decree  had  been  intentionally 
concealed  from  the  proctor  of  the  party  aggrieved,  or  its  ex- 
istence denied,  or  any  artifice  or  fraudulent  practice  resorted 
to  to  deprive  him  of  the  opportunity  of  appeal,  the  right  of 
appeal  would  not  have  been  lost.  But  there  is  no  allegation 
of  fraud  or  unfair  practice.  The  court  met  by  formal  ap- 
pointment to  decide  the  cause;  the  decision  was  made  in  the 
hearing  of  both  proctors;  an  adjournment  was  immediately 
and  publicly  made  in  the  presence  of  the  proctor  of  the  ag- 
grieved party  to  an  early  day,  that  the  decree  might  be  for- 
mally prepared  for  signature.  On  the  day  thus  designated, 
the  court  met,  the  decree  was  signed,  and  immediately  placed 
on  file,  where  it  thereafter  remained  until  the  time  for  ap- 
pealing had  expired. 


OCTOBER  TERM,  1862.  409 

Hillyer  v.  Schenck. 

No  actual  notice  of  the  signing  of  the  decree  was  neces- 
sary, nor  is  it  material  whether  the  party  aggrieved  or  her 
proctor  was  actually  in  court  when  the  decree  was  signed. 
Parties  are  bound  to  take  notice  of  the  acts  and  decrees  of 
the  court  regularly  made. 

As  there  was  manifestly  a  bona  fide  intention  to  appeal,  I 
cannot  but  regret  that  it  has  been  lost  through  mere  inadver- 
tence. But  the  right  of  appeal  and  the  terms  upon  which  the 
right  is  to  be  enjoyed  are  alike  prescribed.  The  rule  is  inflex- 
ible, and  must  be  maintained. 

The  motion  for  an  order  to  return  the  papers  is  denied,  and 
the  petition  of  appeal  dismissed  without  costs  to  either  party, 
as  against  the  other. 


CASES  ADJUDGED 


THE 


OP  THE 


STATE  OF  NEW  JERSEY, 
ON  APPEAL  FROM  THE  COURT  OF  CHANCERY. 

NOVEMBER  TERM,  1861. 


CHARLES  F.  DURANT,  appellant,  and  CHARLES  B.  F.  BACOT 
and  others,  respondents. 

On  a  bill  filed  to  reform  an  alleged  mistake  in  the  description  of  a  lot  of 
land  conveyed  by  deed  of  bargain  and  sale,  where  the  allegation  of  com- 
plainant was,  that  the  deed  sought  to  be  reformed  was  made  to  correct  a 
former  deed  between  the  same  parties,  which  was  erroneous  in  conse- 
quence of  a  mistake  of  the  parties  in  supposing  that  two  streets,  at  the 
intersection  of  which  the  lot  was  located,  intersected  each  other  at  right 
angles,  and  that  the  object  of  making  the  second  deed  was  to  square  the 
lots,  and  to  make  the  westerly  line  of  complainant's  lot  perpendicular  to 
one  of  said  streets,  when  in  fact  the  land  conveyed  by  the  second  deed 
was  not  sufficient  for  the  purpose  intended,  and  that  to  accomplish  that 
object  would  require  complainant  to  have  nineteen  feet  more  of  land  on 
the  turnpike  than  was  actually  conveyed  to  him,  it  was  held — 

That  although  there  was  some  parol  evidence  to  show  that,  at  the  time  the 
second  conveyance  was  made,  the  parties  supposed  it  would  square  the 
complainant's  lot  with  the  turnpike,  and  make  the  westerly  line  perpen- 
dicular thereto,  yet  where  there  is  no  evidence  to  show  that  the  grantor  • 
had  any  intention  to  convey  more  land  than  he  did  convey,  or  that  h« 

411 


412       COURT  OF  ERRORS  AND  APPEALS. 

Durant  v.  Bacot. 

would  have  sold  more  than  he  did,  unless  he  had  been  paid  an  additional 
price,  or  that  the  grantee  got  less  land  than  he  bargained  for  or  paid  for, 
the  deed  will  not  be  reformed. 

A  deed  for  lands  after  it  has  been  deliberately  reduced  to  writing,  exe- 
cuted, acknowledged,  and  recorded,  and  has  remained  unquestioned  for 
many  years,  should  not  be  disturbed  or  made  different  from  what  the 
parties  made  it  on  any  fceble  or  inconclusive  evidence. 

It  may  well  be  doubted  whether  a  court  should  even  attempt  to  reform  a 
deed  upon  verbal  testimony  alone  when  the  alleged  mistake  is  denied. 


This  case  came  up  on  appeal  from  tlie  decision  of  the 
Chancellor  dismissing  the  complainant's  bill.  The  opinion 
of  the  Chancellor  will  be  found  in  2  Rcaslcy,p.  201. 

It  was  argued  in  the  Court  of  Appeals  by 
< 

J.  Weart,  for  appellant. 

A.  O.  Zabriskie,  for  respondents. 

The  opinion  of  the  court  was  delivered  by- 
VAX  DYKE,  J.  The  object  of  the  bill  in  this  case  is  lo 
reform  and  correct  an  alleged  mistake  in  the  description  of  a 
lot  of  land,  situate  in  Jersey  City,  on  the  north  side  of  New- 
ark avenue,  and  on  the  west  side  of  Warren  street,  at  or  near 
ihe  intersection  of  the  two  streets.  The  description  is  con- 
tained in  a  deed  from  John  Van  Vorst  to  William  Durant, 
dated  the  twelfth  day  of  October,  1830,  which  lot  of  land  is 
now  owned  by  (he  complainant. 

The  complainant  alleges,  in  his  bill,  that,  in  the  year  1827, 
the  said  John  Van  Vorst,  for  the  consideration  of  $100,  sold 
and  conveyed  to  the  said  William  Durant  a  lot,  fifty  feet  front 
and  one  hundred  feet  deep,  on  the  north  side  of  said  Newark 
avenue  and  on  the  westerly  side  of  said  Warren  street,  and  in 
the  corner  formed  by  the  intersection  of  the  two  streets; 
that,  at  the  time  Warren  street,  although  laid  out,  had  no 
visible  existence,  and  that  the  precise  place  of  its  location  was 
unknown,  but  that  it  was  believed  it  crossed  Newark  avenue 
at  right  angles. 

That  the  said  William  Durant  took  possession  of  the  said 
lot,  and  built  thereon  two  frame  buildings,  occupying  the 


NOVEMBER  TERM,  1861.  413 

Durant  v.  Bacot. 

whole  of  the  front  of  the'said  lot;  that  it  was  afterwards  dis- 
covered that  the  said  streets  did  not  cross  each  other  at  right 
angles,  but  in  such  way  that  they  would  form  a  very  acute 
angle  at  such  intersection;  and  that,  as  a  consequence,  the 
buildings  so  erected  were  not  wholly  on  the  lot  so  conveyed, 
but  projected  over  and  covered  other  lands  of  the  said  John 
Van  Vorst. 

That  to  remedy  this  difficulty,  and  with  intent  to  make 
the  lot  of  Durant  square  on  the  turnpike  road,  and  his  west- 
erly line  perpendicular  thereto,  he,  on  the  twelfth  of  October, 
1830,  for  the  consideration  of  $25,  purchased  of  said  John 
Van  Vorst  sufficient  land  on  the  westerly  side  of  said  lot  to 
make  the  land  of  said  Durant  square  with  the  said  turnpike 
road,  and  the  westerly  line  thereof  perpendicular  thereto; 
that  the  land  so  purchased  was  a  certain  gore  piece  of  land, 
and  was  particularly  described  in  the  deed  of  conveyance 
for  the  same,  as  "all  that  certain  half  lot,  gore,  piece,  or 
parcel  of  land,  situate,  lying,  and  being  in  the  towpof  Jersey, 
in  the  township,  county,  and  state  aforesaid,  and  lyiug  on  the 
north  side  of  the  turnpike  road  leading  from  and  through 
the  town  of  Jersey  aforesaid  to  the  toM'n  of  Bergen,  butted 
and  bounded  on  the  northwesterly  line  of  Charles  F.  DM  rant's 
lot,  fronting  on  the  said  turnpike  road  twenty-six  feet  from 
the  line  of  said  Charles'  lot,  and  thence  running  diagonally 
to  the  rear  of  said  Charles'  lot,  forming  a  triangle,  the  base 
of  which,  lying  along  the  line  of  said  Charles'  lot,  is  one  hun- 
dred feet  deep  from  said  turnpike  road,  and  the  perpendicu- 
lar along  said  road  twenty-six  feet;"  that  the  object,  inten- 
tion, and  agreement  of  the  parties  to  such  conveyance  was 
to  give  Durant  a  lot  fronting  square  on  said  turnpike  road, 
and  to  make  his  westerly  line  thereof  perpendicular  thereto, 
and  that  the  distance  of  twenty-six  feet  along  the  turnpike 
road  was  inserted  in  the  deed  upon  the  supposition  that  the 
tame  would  reach  a  point  that  would  make  said  lot  square 
as  aforesaid,  and  the  westerly  line  perpendicular  to  said 
road,  but  that,  in  point  of  fact,  it  requires  a  distance  of  fifty- 
iive  feet  along  said  road  to  make  the  lot  square  as  aforesaid,, 

VOL.  ii.  2  c 


414       COURT  OF  ERRORS  AND  APPEALS. 

Diirant  v.  Bacot. 

and  to  reform  and  correct  the  last  mentioned  deed  by  extend- 
ing the  line  along  said  road  to  the  distance  of  fifty-five  feet, 
instead  of  twenty-six  feet,  is  the  object  of  the  bill.  All  these 
allegations  of  the  bill,  so  far  as  they  charge  or  state  that 
the  object  or  intention  of  the  parties  to  the  deed  was  to  make 
it  different  from  what  it  appears  to  be  on  its  face,  or  to  ex- 
tend the  line  on  the  turnpike  beyond  the  twenty-six  feet,  or 
to  make  Durant's  "westerly  line  at  right  angles  with  said 
road,  or  that  it  was  the  intention  of  the  parties  to  it,  in  any 
way  or  manner,  to  include  any  more  land  in  the  deed  than 
the  twenty-six  feet  front  would  cover,  or  that  there  was  any 
mistake  or  misunderstanding  about  it,  are  all  explicitly  de- 
nied in  the  answer;  and  this  places  the  complainant  under 
the  necessity  of  proving  all  the  material  allegations  in  his 
bill.  Has  he  done  so,  is  the  important  and  controlling  ques- 
tion in  the  case.  It  matters  not  what  else  he  may  have 
proved.  If  lie  has  not  proved  these  important  matters,  his 
case  cannot  be  sustained. 

It  may  be  observed  here  that  evidence  to  sustain  such  a 
claim  should  be  of  the  most  satisfactory  kind.  A  deed  for 
lands,  after  it  has  been  deliberately  reduced  to  writing,  de- 
liberately signed  and  sealed,  and  acknowledged  and  placed 
upon  the  public  record  of  the  county,  and  when  such  deed 
has  remained  unquestioned  for  a  long  period  of  years,  should 
not  be  disturbed  and  altered,  and  made  different  from  what 
the  parties  made  it,  on  any  feeble  or  inconclusive  evidence. 
It  should  be  so  clear  and  certain  as  to  leave  little,  if  anything, 
for  doubt.  Title  to  land  by  bargain  and  sale  can  only  take 
place  by  writing  and  seal,  and  it  may  well  be  doubted  whether 
a  court  should  ever  attempt  to  reform  a  deed  upon  verbal 
testimony  alone  when  the  alleged  mistake  is  denied ;  but 
assuming  that  this  may  be  done,  what  has  the  complainant 
proved  in  this  case  to  justify  the  court  in  exercising  this  im- 
portant but  somewhat  dangerous  power  ? 

The  only  evidence  that  can  be.considercd  as  bearing  upon 
the  case  at  all  is  that  of  Jonathan  I.  Durnnt  and  Samuel  Cas- 
sedy.  According  to  the  evidence  of  Mr.  Durant,  the  object 


NOVEMBER  TERM,  1861.  415 


Durant  v.  Bacot. 


of  the  parties  iu  making  the  second  deed  was  to  square  the 
lot,  but  this  they  certainly  did  not  do — for  while  they  added 
the  twenty-six  feet  gore  on  the  west  they  left  the  east  side 
the  same  as  it  was  before,  and  thereby  made  Durant's  lot 
seventy-six  feet  in  front,  and  fifty  in  the  rear,  which  was  far 
from  being  square ;  and  if  they  had  added  fifty-five,  instead 
of  twenty-six  feet  on  the  turnpike,  in  would  still  be  far  from 
square. 

The  testimony  of  Mr.  Cassedy  is  very  much  to  the  same 
purport;  their  object,  according  to  him,  seemed  to  have  been 
to  square  the  lot,  and  this  was  to  have  been  done  by  adding 
more  laud  on  the  westerly  side.  Nothing  seems  to  have  been 
said  or  done  about  giving  up  any  land  on  the  east  side  in 
compensation  for  what  was  added  on  the  west  by  way  of 
squaring  the  lot,  and  nothing  appears  to  have  been  contem- 
plated— certainly  nothing  was  done,  except  to  purchase  ad- 
ditional land  on  the  westerly  side.  Durant  fixed  the  quantity 
which  he  would  need  to  accomplish  his  purpose  at  twenty- 
six  feet  in  front,  and  nothing  in  the  rear.  Mr.  Van  Vorst 
agreed  to  sell  him  the  quantity  thus  named  for  twenty-five 
dollars,  which  he  did,  and  made  the  deed  accordingly.  This 
was  the  whole  of  the  transaction  in  substance.  It  may  be 
true  that  all  parties  at  the  time  were  under  the  impression 
that  the  quantity  thus  added  would  make  the  westerly  line 
at  right  angles  with  the  road,  or  nearly  so;  but  no  pains 
were  taken  to  see  whether  it  were  so  or  not,  and  there  is 
not  a  particle  of  evidence  to  show  that  Van  Vorst  had  the 
slightest  intention  of  selling  or  conveying  any  more  land 
than  he  did  then  convey,  or  that  he  would  have  sold  a  foot 
more  of  land  than  he  did  sell,  unless  he  had  been  paid  an 
additional  compensation  therefor,  Durant  got  the  whole  length 
that  he  asked  for  and  all  that  he  bargained  for,  and  he  paid 
for  nothing  that  he  did  not  get.  On  what  principle  it  is,  then, 
that  he  now  claims  that  which  he  never  asked  for,  that  which 
he  never  bargained  for,  and  that  which  he  never  paid  for,  it 
is  difficult  to  perceive. 

I  cannot  see,  from  the  evidence,  that  any  deception  was 


416       COURT  OF  ERRORS  AND  APPEALS. 

Durant  t.  Bacot. 

practised  or  mistake  made.  If  Durant  did  not  think  proper 
to  have  a  measurement  made  of  what  he  desired,  but  saw  fit 
to  make  a  guess  on  the  subject,  and  it  turned  out  that  the  pur- 
chase did  not  answer  his  purpose  quite  as  well  as  he  ex- 
pected it  would,  it  was  an  error  of  his  own  alone,  but  it 
furnished  no  reason,  then  or  now,  nor  at  any  after  time,  for 
compelling  Mr.  Van  Vorst  or  his  descendants  to  convey  to 
him  other  lands  never  asked  for,  or  purchased  or  paid  for,  and 
without  any  additional  compensation,  so  that  his  original 
design,  if  he  had  one,  of  having  his  westerly  line  at  right 
angles  with  the  road,  might  be  carried  out. 

It  may  also  be  remarked  of  this  evidence,  that  if  it  were 
much  more  clear  and  explicit  in  its  terms  than  it  is,  it  would 
atill  be  dangerous  in  the  last  degree  to  rely  upon  in  so  im- 
portant a  matter.  However  intelligent  and  upright  the 
witnesses  may  have  been,  they  are  called  on,  after  a  lapse  of 
nearly  thirty  years,  to  detail  not  so  much  the  acts  of  the 
parties,  for  their  acts  are  all  the  other  way,  but  to  rej)cat  tho 
conversations  they  had,  a?  well  as  the  casual  remarks  of  the 
parties.  That  such  accounts  of  such  conversations  should  be 
allowed  to  prevail  over  the  solemn  deed  actually  made  and 
executed  by  the  parties  at  the  time  would  seem  to  be  strange 
indeed.  It  would  be  substituting  memory,  in  its  frailest  form, 
for  the  highest  and  most  reliable  evidence  known  to  the  law. 

But  the  complainant  insists  that  his  claim  is  sustained  by 
the  description  in  the  deed  itself.  If  this  were  so,  it  would 
scarcely  be  necessary  to  ask  to  have  it  changed.  The 
word  "perpendicular™  which  is  the  only  one  relied  on,  as 
introduced  into  this  description,  is  wholfy  meaningless  and 
of  no  significance  at  all.  \Ve  are  informed,  by  the  descrip- 
tion, that  the  lines,  courses,  and  distances  given  form  a  tri- 
angle, the  base  of  which,  that  is  the  base  of  the  triangle,  is 
along  the  northwesterly  line  of  Charles  F.  Du rant's  lot  one 
hundred  feet,  and  the  perpendicular,  that  is  the  perpendicular 
of  the  triangle,  is  along  the  said  road  twenty -six  feet,  but 
what  the  road,  which  is  made  the  perpendicular  of  the  tri- 
angle, is  perpendicular  to  we  are  in  no  way  informed.  The 


NOVEMBER  TERM,  1861.  417 


Durant  v.  Bacot. 


natural  inference  is  that  it  means  perpendicular  to  the  base, 
for  that  is  the  last  and  only  other  line  spoken  of  in  the  de- 
scription of  the  triangle,  as  such.  If  it  means  this,  the  word 
is  very  improperly  used,  for  the  base  of  the  triangle,  as  given, 
is  the  easterly  line  of  the  lot  thereby  conveyed,  which  it  is 
manifest  enough  is  very  far  from  being  perpendicular  to  the 
turnpike  road.  If  perpendicular  to  the  westerly  line  is 
meant,  and  it  does  not  say  so,  it  is  almost  as  far  from  the 
truth;  for  that  line,  made  to  commence  twenty-six  feet  from 
the  lot  first  conveyed,  and  running  thence  to  the  rear  thereof, 
is  also  far  from  being  perpendicular  to  the  road. 

But  what  must  entirely  overthrow  the  construction  con- 
tended for  by  the  complainant,  if  the  deed  be  appealed  to,  is 
that,  in  describing  the  westerly  line,  it  is  not  only  not  termed 
a  perpendicular,  but  it  is  in  express  language  called  a  diag- 
onal line,  running  "  diagonally  "  from  the  turnpike.  Why 
the  parties  and  their  scriveners  should  have  used  the  word 
diagonally,  if  they  all  understood  it  to  be  perpendicularly,  it 
is  difficult  to  see.  The  claim,  then,  is  weakened  much  more 
than  strengthened  by  an  appeal  to  the  deed  itself.  But  if  it 
were  expressed  in  unmistakable  terms  that  the  westerly  line 
was  perpendicular  to  the  road,  it  would  not  and  could  not 
prove  that  Durant  did  not  get  every  inch  for  which  he  bar- 
gained and  for  which  he  paid,  nor  would  it  prove  that  the 
parties,  or  either  of  them,  intended  to  include  any  more  land 
in  the  deed  than  what  is  therein  clearly  enough  expressed. 

The  complainant,  in  the  argument  of  his  own  case,  which 
he  did  in  the  most  learned,  scientific,  and  artistic  manner, 
seems  to  think  that  he  has  discovered  in  the  defendant's 
answer,  in  their  evidence,  and  also  in  the  opinion  of  the  Chan- 
cellor, something  that  is  not  accordant  with  his  views  of  the 
innumerable  angles  and  triangles,  and  every  other  kind  of 
angles  which  he  exhibited,  and  to  which  he  referred,  some- 
thing that  is  not  exactly  perpendicular,  some  departure  from 
the  radius  vector  or  disregard  of  Kepler's  second  law.  This 
may  all  be  so.  I  shall  not  question  it — for  I  do  not  think  that 
either  ordinary  or  extraordinary  skill  and  attainments  can 


418       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

solve  all  the  remarkable  propositions  for  which  he  contended ; 
but  if  we  admit  them  all  to  be  true,  I  do  not  see  that  they 
throw  any  light  whatever  on  the  important  but  very  plain 
question  on  which  we  are  to  decide.  I  do  not  see  that  they 
go  one  step  toward  proving  that  there  was  any  design,  inten- 
tion, or  understanding  by  the  parties,  or  either  of  them,  to 
the  deed  of  1830,  that  Durant  was  to  have  fifty-five  addi- 
tional feet  on  the  turnpike,  instead  of  twenty-six,  or  that  his 
deed  does  not  cover  to  the  full  the  entire  area  of  ground  that 
it  was  intended  to  cover. 

I  think,  therefore,  that  the  evidence  wholly  fails  to  sustain 
the  claim  that  the  complainant  has  made,  and  that  the  Chan- 
cellor's decision  dismissing  the  bill  is  right. 

For  affirmance — BROWN,  COMBS,  CORNELISON,  ELMER, 
KENNEDY,  VAN  DYKE,  WHELPLEY,  WOOD — 8. 

For  reversal — None. 


THE  NEW  JERSEY  ZINC  COMPANY,  appellants,  and  THE 
BOSTON  FRANKLINITE  COMPANY,  respondents. 

Decided  at  November  Term,  1862. 

The  Sussex  Zinc  Company  agreed,  under  seal,  to  transfer  to  the  New  Jer- 
sey Zinc  Company  all  tlieir  stock  and  all  their  property,  real  and  per- 
Bonal.  Both  parties  applied  to  the  legislature,  and  procured  an  act 
authorizing  it  to  be  done.  Under  the  agreement  and  act,  the  Sussex 
Company  transferred  to  the  other  company  all  its  stock,  21,849  shares, 
not  issued  to  individuals,  and  all  its  stockholders  transferred  all  their 
shares,  20,151,  and  the  New  Jersey  Zinc  Company  issued  a  like  amount, 
48,000  shares,  of  their  own  stock  in  payment.  A  year  afterwards,  while 
three  of  the  directors  of  the  Sussex  Company  had  not  yet  transferred 
thirty  shares  out  of  the  48,000  to  the  Zinc  Company,  they  applied  to  the 
legislature,  and  got  the  name  of  the  Sussex  Company  changed  to  that  of 
the  Franklinite  Company,  and  48,000  shares  of  additional  stock,  and 
then  also  transferred  the  said  thirty  shares  of  old  stock. 

Held,  1st.  That,  by  these  proceedings,  the  New  Jersey  Zinc  Company  be- 
came entitled  in  equity  to  all  the  property  owned  by  the  Sussex  Companj 


NOVEMBER  TERM,  1862.       ,  419 

The  New  Jersey  Zinc  Co.  t.  The  Boston  Franklinite  Co. 

at  the  time  of  the  transfer  of  the  stock,  and  that  Chancery  will  protect 
the  former  in  its  use. 

2d.  That  the  Franklinite  Company,  as  regards  the  property  owned  by  the 
Sussex  Company  at  the  time  of  said  transfer  of  stock,  is  a  new  corpora- 
tion, and  as  such  has  no  title,  either  equitable  or  legal,  to  the  properlv 
the  Sussex  Company  had  so  agreed  to  convey. 

3d.  If  the  Franklinite  Company  is  not  a  new  corporation,  but  the  Sussex 
Company  under  a  new  name,  then  the  increased  stock,  as  well  as  the  old 
stock,  belongs  in  law  and  equity  to  the  Zinc  Company,  as  owners  of  the 
old  stock. 

A  deed  conveys  to  the  Zinc  Company  "  all  the  zinc  ores  in  the  following 
described  premises,"  going  on  describing  them  by  metes  and  bounds  ;  and 
also  adds,  "  and  also  all  the  estate,  right,  and  title  of  the  said  parties  of 
the  first  part  in  the  before  described  premises." 

Held  that  it  conveyed  all  the  right  of  the  parties  of  the  first  part  in  the 
described  premises. 

A  deed  conveys  to  the  grantee  all  the  zinc  and  other  ores,  except  the 
ore  called  franklinite  and  iron  ore,  where  it  exists  separate  from  the 
zinc,  "  to  have  and  to  hold  all  the  zinc  and  other  ores,  except  the  ore 
called  franklinite,  where  it  exists  separate  and  distinct  from  the  zinc." 

Held,  that  the  deed  conveys  all  the  zinc  ores  when  the  franklinite  was 
mixed  mechanically  with  the  zinc. 

A  deed  conveys  all  the  zinc  and  other  ores,  and  excepts  the  ore  called 
franklinite ;  the  complainant  claims  a  vein  of  ores  as  passing  by  the 
name  of  zinc,  the  defendants  claim  the  same  vein  as  exccpted  under  the 
name  of  franklinite. 

Held,  that  what  was  meant  by  the  word  zinc  might  be  explained  by  evi- 
dence dehors  the  deed,  and  that  under  such  evidence  the  vein  in  dispute 
passed  under  the  name  of  zinc. 

To  arrive  at  the  true  construction  of  the  word  "  premises,"  as  used  in  this 
deed,  it  is  competent  for  the  court  to  resort  to  the  previous  written 
agreement  between  the  parties,  in  fulfilment  of  which  the  deed  was 
made,  to  ascertain  from  that  what  the  grantors  intended  to  convey.— 
Per  BROWN,  J. 

This  was  an  appeal  from  the  decision  of  the  Chancellor, 
reported  in  2  Beasley,  p.  322. 

Bradley  and  Zabriskie,  for  appellants. 
Hamilton  and  McCarter,  for  respondents. 

The  following  opinions  were  delivered  in  the  Court  of  Ap- 
peals. 


420       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinitc  Co. 

VKEPENBURGII,  J.  The  Boston  Franklinite  Company  hold 
under  the  mortgage  and  sheriff's  deed  from  the  New  Jersey 
Frank! inite  Company.  Their  cross-bill  shows  that  the  rights 
of  the  New  Jersey  Zinc  Company  are  cxcepted  out  of  their 
deed,  and  tliat  they  are  chargeable  with  notice  of  the  pro- 
ceedings of  the  first  mentioned  suit,  and  only  claim  to  repre- 
sent the  rights  of  the  New  Jersey  Franklin! te  Company. 
We  may  therefore  consider  the  New  Jersey  Zinc  Company, 
complainants,  and  the  New  Jersey  Frankliniie  Company,  de- 
fendants, as  the  only  litigants  here,  and  which  for  brevity  I 
shall  hereafter  call  the  Zinc  Company  and  the  Franklinite 
Company. 

There  is  in  the  county  of  Sussex  a  tract  of  land,  of  about 
92  acres,  called  Mine-hill.  Nearly  through  its  centre  runs, 
north  and  south,  a  vein  of  ore,  composed  of  zinc  ores  and  a 
peculiar  kind  of  iron  or  zinc  ore  called  franklinite,  mixed 
mechanically  together  like  wheat  and  chaff  in  the  same 
bushel. 

In  1857,  both  parties  were  taking  ore  out  of  it.  Chancery 
has  perpetually  enjoined  the  Zinc  Company,  and  permitted 
the  other  to  go  on,  and  the  question,  which  of  these  parties 
lias  in  a  court  of  equity  the  better  right  to  the  use  of  this 
vein,  is  now  before  us  for  final  adjudication. 

Both  parties  claim  title  through  a  deed,  dated  the  10th 
of  March,  1848,  from  Samuel  Fowler  to  a  corporation  called 
the  Sussex  Zinc  Company.  Both  parties  claim  under  this 
Sussex  Company.  The  Zinc  Company  claim  that,  in  1851 
and  1852,  the  said  Sussex  Company  sold  and  transferred  all 
their  legal  and  equitable  estate  in  this  vein  to  them.  The 
Franklinite  Company  claim  that  no  such  transfer  was  ever 
made  to  the  Zinc  Company,  and  that  the  legislature,  on  the 
26th  of  January,  1853,  changed  the  name  of  the  Sussex  Com- 
pany to  that  of  the  New  Jersey  Franklinite  Company,  and 
that  they,  too,  are  the  Sussex  Company  under  a  new  name, 
and  as  such  own  this  vein.  Upon  this  issue  Chancery  has 
decreed  in  favor  of  the  Franklinite  Company. 

The  question  to  bo  solved  therefore  is,  whether  the  Sussex 


NOVEMBER  TERM,  18G2.  421 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

Company,  now  called  the  Franklinite  Company,  have  trans- 
ferred their  right,  equitable  or  legal,  in  this  vein  to  the  Ziuo 
Company. 

I  shall  first  inquire  as  to  the  condition  of  the  equitable 
title. 

This  Sussex  Company  was  chartered  in  January,  1848. 
In  1819,  another  company  was  chartered,  by  the  name  of  the 
New  Jersey  Exploring  and  Mining  Company,  whose  name, 
in  1852,  was  also  changed  to  that  of  the  New  Jersey  Zinc 
Company,  who  are  the  present  complainants.  On  the  4th 
of  September,  1851,  before  the  name  of  either  party  was 
changed,  these  two  companies  came  together,  and  entered 
into  an  agreement,  under  their  respective  corporate  seals,  in 
the  following  words:  "  This  agreement,  made  at  the  city  of 
Newark,  state  of  New  Jersey,  this  4th  day  of  September, 
1851,  between  the  Sussex  Company  and  the  Exploring  Com- 
pany, both  corporations  chartered  by  the  legislature  of  the 
state  of  New  Jersey,  witncsseth  that,  for  the  mutual  interest 
of  both  the  said  companies,  they  have  agreed  to  unite  iheir 
properties,  and  to  carry  on  their  joint  business  under  one 
organization,  that  of  the  Exploring  Company.  The  Sussex 
Company  agree  hereby  to  convey  to  the  said  Exploring  Com- 
pany all  the  real  and  personal  estate  of  the  said  Sussex  Com- 
pany, and  all  mines  and  minerals,  leases  and  rights,  and  all 
the  capital  stock  belonging  to  the  said  company  not  issued 
to  individuals;  and  the  said  Exploring  Company  agree  to  re- 
oogni/c  and  admit  the  whole  stock  of  the  said  Sussex  Com- 
pany to  the  same  dividends  as  the  stock  of  the  said  Explor- 
ing Company,  and  the  individuals  now  holding  the  stock  of 
the  said  Sussex  Company  shall  be  entitled,  equally  with  the 
holders  of  the  stock  of  the  Exploring  Company,  to  all  divi- 
dends and  to  all  the  properties,  both  real  and  personal,  of 
the  said  companies.  The  Exploring  Company  is  to  sell  and 
dispose  of  the  stock  of  the  said  Sussex  Company  not  already 
issued,  and  agrees  to  apply  the  proceeds  thereof  in  extending 
the  manufacturing  works  now  owned  by  the  said  Exploring 
Company,  and  to  the  payment  of  all  debts  or  demands  against 


422       COURT  OF  ERRORS  AND  APPEALS. 

Tlie  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

either  company,  and  in  any  other  way  which  may  tend  to 
promote  the  joint  interest  of  the  respective  stockholders. 

This  union  is  hased  upon  the  principle  of  entire  equality 
between  the  individual  stockholders  composing  shareholders 
of  each  company.  It  is  contemplated. to  apply  to  the  legis- 
lature of  New  Jersey  for  an  increase  of  capital  stock  of  the 
Exploring  Company  to  an  amount  equal  to  that  of  the  Sussex 
Company ;  and  in  case  of  such  increase,  then  the  said  stock 
of  the  said  Sussex  Company  is  to  be  surrendered,  and  the  said 
stock  of  the  said  Exploring  Company  issued  in  lieu  thereof. 
The  real  estate  of  the  said  Sussex  Company  and  all  per- 
sonal properly  is  to  be  transferred  to  the  said  Exploring  Com- 
pany, thus  forming  a  complete  union,  and  bringing  together 
and  uniting  under  one  charter  all  the  property,  rights,  or 
advantages  now  owned  and  enjoyed  by  both  said  companies. 
But  until  such  legislative  sanction  shall  be  obtained,  the  en- 
tire management  of  the  joint  property  shall  be  vested  in  the 
Exploring  Company,  and  all  dividends  shall  be  declared  and 
paid  equally  upon  the  issued  stock  of  both  companies. — In 
witness  whereof,  the  presidents  of  the  two  companies  have 
hereunto  respectively  set  their  hands  and  affixed  the  corpo- 
rate seals  of  the  respective  companies  the  day  and  year  first 
above  written. 

[SEAL.]  JAMES  L.  CURTIS, 

Preset  of  the  Exploring  Company. 

[SEAL.]  J.  ELNATHAX  SMITH, 

Preset  of  the  Sussex  Company. 
Witness — Thomas  Duguid." 

Under  this  agreement  both  parties  did,  at  the  next  session 
of  the  legislature,  apply  and  obtain,  on  the  12th  of  February, 
1852,  an  act  in  the  following  words,  viz.:  "  A  supplement  to 
an  act  entitled,  an  act  to  incorporate  the  Exploring  Com- 
pany. 

"  Whereas  it  has  been  thought  expedient,  by  parties  own- 
ing certain  zinc  mines  in  the  county  of  Sussex,  state  of  New 
Jersey,  for  the  purpose  of  more  economically  working  and 


NOVEMBER  TERM,  1862.  423 

The  rfew  Jersey  Zinc  Co.  v.  The  Boston  Fraiiklinite  Co. 

developing  the  same,  to  place  such  mines  under  the  manage- 
ment of  one  corporation ;  and  whereas  an  arrangement  by 
and  between  the  Exploring  Company  and  the  Sussex  Com- 
pany is  contemplated — in  accordance  with  such  views — 

1.  Be  it  enacted,  that  the  Exploring  Company  shall  here- 
after be  known,  in  fact  and  in  name,  by  the  name  of  l  the 
New  Jersey  Zinc  Company,'  and  by  that  name  shall  hereafter 
be  a  body  politic  and  corporate,  and  shall  possess  and  exercise 
all  the  corporate  powers  and  franchises,  and  be  subject  to  all 
the  liabilities  and  restrictions  of  the  said  exploring  and  mining 
companies. 

2.  That  the  New  Jersey  Zinc  Company  is  hereby  author- 
ized to   purchase   and   receive,  and  the  Sussex  Company  is 
hereby  authorized    to   transfer   all    the    mines   and  mineral 
rights,  or  any  portion  thereof  now  held  or  owned  by  the  said 
Sussex  Company,  upon  such  terms  as  the  two  companies  may 
agree  upon ;  and  the  capital  stock  of  the  said  Zinc  Company 
may  be  increased,  and  its  stock  issued  for  the  purchase  of 
mines  and  mineral  rights  to  the  amount  heretofore  author- 
ized by  the  charter  of  the  said  companies. 

3.  That  the  directors  of  the  Zinc  Company  may  be  increased 
to  twelve. 

4.  The  Zinc  Company  performed  faithfully  all  the  agree- 
ment on  their  part   to   be   performed.     Their   part   of  the 
agreement  was  to  recognize   and  admit  the  whole  stock  of 
the  Sussex  Company  to   the   same   dividends   as  their  own 
stock ;  and  in  case  of  the  increase  of  the  zinc  stock  by  the 
legislature,  then  the  stock  of  the  Sussex  Company  was  to  be 
surrendered,  and  the  Zinc  Company  issue  their  own  stock  in 
lieu  thereof.     This  they  have  fully  done.     Thus  Major  Far- 
rington  says:  'The  individual  shareholders  of  the    Sussex 
Company,  in  pursuance  of  the  agreement  between  the  two 
companies,  surrendered    their   stock    certificates    to  the  Zino 
Company,  and  received  a  corresponding  number  of  shares  in 
the  stock  of  the  Zinc  Company.     The  stock  that  had  not 
been  issued  by  the  Sussex  Company  was  sold  by  the  Zino 
Company,  and  the  proceeds  applied  for  the  uses  and  benefits 


424       COURT  OF  ERRORS  AND  APPEALS. 

The  Now  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

of  said  company,  and  tlie  act  of  union,  as  contemplated  l>y  the 
agreement  referred  to,  was  considered  as  perfected  and  fully 
consummated.'  ' 

James  L.  Curtis,  another  of  the  main  witnesses  of  the 
Boston  Company,  says:  "I  was  one  of  the  first  directoi-s  of 
both  the  Sussex  and  the  Exploring  companies.  There  was 
an  agreement  entered  into  between  them,  in  1851,  to  transfer 
the  property  of  the  Sussex  Company  to  the  Exploring  Com- 
pany, which  was  carried  into  effect.  The  Sussex  Company 
conveyed  its  rights  to  the  Zinc  Company.  I  held  several 
thousand  shares  of  the  Sussex  Company  stock,  and  received 
therefor  shares  in  the  Zinc  Company  stock  to  the  same  amount 
at  the  time  of  the  consolidation." 

Christian  E.  Detmold,  a  witness  on  the  part  of  the  Zinc 
Company,  says,  that  he  became  connected  with  the  Zino 
Company  in  1852,  and  was  its  president  from  the  beginning 
of  1853  until  the  latter  part  of  1856.  Being  shown  the 
agreement  of  September  4th,  1851,  says:  "I  am  perfectly 
familiar  with  that  agreement.  After  that  was  made,  an  act 
of  the  legislature  was  obtained  increasing  the  stock  of  the 
Zinc  Company  §600,000,  making  the  entire  capital  $1,200,- 
000.  Thereupon  the  stockholders  of  the  Sussex  Company 
surrendered  their  certificates  of  shares  therein,  and  received 
in  lieu  thereof  an  equal  amount  of  shares  in  the  Zinc  Com- 
pany. I  think  there  was  $326,000  worth  of  new  zinc  stock 
issued  in  return  for  that  amount  of  Sussex  stock.  The  Sus- 
sex Company  had  originally  $600,000  worth  of  stock  in 
48,000  shares,  at  $12.50  each ;  of  that  they  had  sold,  prior 
to  the  amalgamation,  26,151  shares,  and  retained  21,849 
shares,  which  latter  were  transferred  to  the  Zinc  Company 
by  the  Sussex  Company,  and  the  Zinc  Company  issued  in 
lieu  thereof,  from  time  to  time,  their  own  stock  to  the  same 
amount.  The  26,151  shares  of  the  Sussex  Company,  being 
in  the  hands  of  private  stockholders,  were  surrendered  by 
them  to  the  Zinc  Company,  and  in  lieu  thereof  there  was 
issued  to  them  the  like  amount  of  the  zinc  stock.  The  Zinc 
Company  received  no  other  consideration  for  the  stock  which 


NOVEMBER  TERM,  1862.]  .    425 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

they  thus  issued  to  the  private  stockholders  of  the  Sussex 
Company  but  the  Mine-hill  property.  The  stockholders  of 
the  Sussex  Company  never  paid  any  money  for  that  stock. 
The  price  at  which  the  stock  of  the  Zinc  Company  was  then 
selling  was  par  and  above  par.  I  purchased  at  that  time 
1100  shares  of  them,  and  gave  12|,  twelve  dollars  and  fifty 
cents  being  par. 

The  Zinc  Company  recognized  the  agreement  on  the  4th 
of  September,  1851,  as  binding,  and  acted  accordingly. 
They  recognized  it,  and  carried  it  out  in  good  faith,  aud  the 
stockholders  who  received  zinc  stock  for  Sussex  stock  have 
fully  participated  in  all  the  profits  made  by  the  Zinc  Com- 
pany ever  since." 

Mr.  Aitkin,  another  witness  for  the  Zinc  Company,  says, 
he  has  been  president  of  the  Zinc  Company  since  December 
12th,  1857,  and  has  been  a  director  since  1853;  that  before 
he  became  a  director,  all  the  48,000  shares  of  the  Sussex 
Company  had  been  surrendered  to  the  Zinc  Company,  and 
zinc  stock  had  been  issued  therefor,  with  the  exception  of  a 
few  shares  standing  in  the  name  of  a  person  of  unsound  mind 
incapacitated  to  act,  but  that  all  the  shares  of  the  Sussex 
Company  have  equally  participated  in  the  dividends  of  the 
Zinc  Company  ever  since  he  has  been  a  director. 

So  that,  according  to  the  witnesses  on  both  sides,  in  the 
spring  of  1852,  a  year  before  it  is  alleged  the  Sussex  Com- 
pany got  their  name  changed  to  that  of  the  Franklinite  Com- 
pany, the  Zinc  Company  hajl  paid  to  the  Sussex  Company 
every  dollar  of  their  large  amount  of  purchase  money,  either 
by  actually  issuing  their  own  stock  in  exchange  for  that  of 
the  Sussex  Company,  or  recognizing  it  as  their  own,  and  pay- 
ing dividends  on  the  whole. 

AVhat  is  the  actual  value  of  the  consideration  money  thus 
given  by  the  Zinc  Company  to  the  Sussex  Company  under 
this  contract,  and  for  which  the  Sussex  Company  were  to 
transfer  to  them  all  their  stock  and  all  their  property,  real 
and  personal  ?  There  were  in  the  hands  of  the  stockholders 
of  the  Sussex  Company,  in  the  spring  of  1852,  stock  issued 


426       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zin",  Co.  t>.  The  Boston  Franklinite  Co. 

to  them  to  the  amount  of  26,151  shares,  which,  at  $12.50 
per  share,  amounted  to  $326,887.  For  this  the  Zinc  Com- 
pany issued  to  these  stockholders  their  own  certificates  of 
consolidated  stock  to  an  equal  amount,  viz.  $326,887.  Mr. 
Dctmold  testified  that  the  stock  of  the  Zinc  Company  was 
selling  at  that  time  at  par  and  above  par  ;  that  he  purchased 
at  that  time,  and  paid  over  par  for  $14,000  of  the  stock. 
To  this  I  find  no  contradiction  in  the  evidence.  If  this  be 
true,  the  Zinc  Company  paid  to  the  Sussex  Company  over 
$326,887  in  actual  value  upon  this  agreement.  The  only 
other  witness  I  find  who  speaks  to  this  subject  is  Col.  Curtis, 
a  witness  for  the  defendant,  who  says,  that  at  the  date  of  the 
agreement,  September  4th,  1851,  the  stock  of  the  companies 
was  selling  at  from  $6  to  $6^  per  share — so  that,  even  taking 
this  estimate,  the  Zinc  Company  must  have  given  $163,443, 
or  thereabouts,  in  actual  value  under  this  agreement.  But 
Mr.  Curtis  was  speaking  of  the  value  at  the  date  of  the 
agreement,  September  4th,  1851,  and  Dctmold,  at  the  time 
of  the  consolidation,  in  the  spring  of  1852,  which  may  ac- 
count for  the  difference  in  their  statement  of  value. 

But  this  is  not  all  the  consideration  the  Zinc  Company 
gave  under  and  to  perform  this  agreement.  There  were 
21,849  shares  of  the  Sussex  Company  stock  unissued  to  indi- 
viduals. These  the  Zinc  Company  also  took  and  used  under 
the  agreement  for  the  equal  benefit  of  the  stockholders  of 
both  companies.  The  effect  of  this  was,  that  as  long  as  the 
Zinc  Company  did  not  issue  their  increased  stock  to  repre- 
sent these  21,849  shares,  those  who  received  zinc  stock  in 
exchange  for  Sussex  stock  received  so  much  larger  dividends, 
and  the  original  stockholders  of  the  Zinc  Company  so  much 
the  less ;  and  when  sold,  for  every  $100  got  for  them,  those 
who  had  exchanged  Sussex  stock  for  zinc  got  $25,  or  there- 
abouts. Before  the  consolidation  the  Zinc  Company  declared 
dividends  only  on  48,000  shares,  and  after  the  consolidation 
on  96,000  shares ;  so  that  if  they  got  nothing  from  the  Sus- 
sex ComjMiny  in  exchange,  as  the  Boston  Company  now  con- 
tend for,  they  just  sunk  half  their  capital  by  the  operation. 


NOVEMBER  TERM,  1862.  427 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

If  the  witnesses  speak  the  truth,  the  Zinc  Company  must 
have  given,  in  the  performance  of  this  agreement  and  as 
consideration  money  for  this  vein  of  ores,  over  $400,000  in 
actual  value  to  the  Sussex  Company,  or  rather  to  their  stock- 
holders. At  any  rate,  be  it  more  or  less,  there  is  no  dispute 
<ibout  this,  that  the  Zinc  Company  performed,  to  the  very 
letter  and  to  the  entire  satisfaction  of  the  Sussex  Company, 
and  of  every  one  of  its  stockholders,  the  contract  on  their 
part  to  be  performed.  Not  a  whisper,  through  this  large 
volume  of  600  pages,  has  been  lisped  by  any  person  or  in- 
terest, or  even  on  the  argument,  that  the  Zinc  Company  did 
not  perform  in  the  most  strict  and  honorable  manner  the 
whole  agreement  on  their  part. 

Having  thus  seen  what  was  done  by  the  Zinc  Company  in 
performance  of  this  agreement  and  act  on  their  part,  let  us 
now  see  what  was  done  by  the  Sussex  Company  on  their  part 
to  be  performed.  In  the  first  place,  the  stockholders  of  the  Sus- 
sex Company  transferred  or  surrendered  to  the  Zinc  Company 
all  their  stock  in  the  Sussex  Company,  amounting  to  26,151 
shares,  and  took  that  amount  of  the  consolidated  stock  of 
the  Zinc  Company  in  exchange.  In  the  second  place,  the 
Sussex  Company  transferred  or  surrendered  to  the  Zinc 
Company  all  their  stock,  amounting  to  21,849  shares,  not 
yet  issued  to  individuals,  and  the  Zinc  Company  issued  their 
own  consolidated  stock  from  time  to  time  in  lieu  thereof, 
and  applied  its  proceeds  strictly  according  to  the  agreement 
for  the  equal  benefit  pf  the  stockholders  of  both  corporations. 
These  facts  are  abundantly  established  by  the  evidence.  Thus 
Major  Farrington  says  :  "  After  the  conveyance  of  the  prop- 
erty, the  individual  shareholders  in  the  Sussex  Company, 
in  pursuance  of  the  agreement,  surrendered  their  stock  cer- 
tificates to  the  Zinc  Company,  and  received  a  corresponding 
number  of  shares  of  the  stock  of  that  company.  The  stock 
which  had  not  been  issued  by  the  Sussex  Company  was  sold 
by  the  Zinc  Company.  The  proceeds  applied  for  the  uses 
and  benefits  of  that  company  (of  course  the  consolidated  com- 
pany), and  the  act  of  union,  as  contemplated  by  the  agree- 


428   COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Frank! inite  Co. 

mcnt  referred  to,  was  perfectly  and  fully  consummated." 
Again  he  says,  "after  the  act  of  the  legislature,  the  share- 
holders of  Sussex  stock  surrendered  tlicir  certificates  for 
those  of  the  Zinc  Company.  In  this  manner  the  whole  of  the 
stock  of  the  Sussex  Company  became  converted  into  shares 
in  the  Zinc  Company  almost  immediately,  except  about  thirty 
shares,  and  the  whole  of  it  ultimately.  The  agreement  was 
finally  carried  out  between  the  companies." 

James  L.  Curtis,  a  witness  for  the  defendant,  says  :  "  There 
was  an  agreement,  in  September,  1851,  to  transfer  the  prop- 
erty of  the  Sussex  Company  to  the  Zinc  Company,  which 
was  carried  into  effect.  The  Sussex  Company  conveyed  its 
rights  to  the  Zinc  Company.  I  held  several  thousand  shares 
of  the  Sussex  stock.  I  received  therefor  shares  in  the  Zinc 
Company  stock  to  the  same  amount  at  the  time  of  the  con- 
solidation." 

Mr.  Dctmold  says:  "The  Sussex  Company  surrendered 
their  certificate  of  shares  therein,  and  received  in  lieu  thereof 
an  equal  amount  of  shares  in  the  Zinc  Company.  There  ivas 
$326,000  worth  of  new  zinc  stock  issued  in  return  for  that 
amount  of  Sussex  Company  stock.  The  Sussex  Company 
had  originally  $600,000  worth  of  stock  in  48,000  shares,  at 
$12.00  each  ;  of  that  they  had  sold,  prior  to  the  amalgama- 
tion, 26,151  shares,  and  retained  21,849  shares,  which  latter 
were  transferred  to  the  Zinc  Company  by  the  Sussex  Com- 
pany, and  the  Zinc  Company  issued  from  time  to  time  their 
own  stock  in  lieu  thereof.  The  26,151  shares  of  the  Sussex 
stock,  being  in  the  hands  of  private  stockholders,  were  sur- 
rendered by  them  to  the  Zinc  Company,  and  in  lieu  thereof 
was  issued  to  them  the  like  amount  of  zinc  stock.  The  Zinc 
Company  received  no  other  consideration  for  the  stock  which 
they  thus  issued  to  the  private  stockholders  of  the  Sussex 
Company  but  the  Mine-hill  property.  The  stockholders  of 
the  Sussex  Company  never  paid  any  money  for  that  stock. 
The  stock  was  then  selling  above  par."  It  is  admitted,  on 
all  sides,  that  the  Zinc  Company  or  its  stockholders  now 
hold,  under  the  agreement  of  September  4th,  1851,  and  the 


NOVEMBER  TERM,  1862.  429 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

said  act  of  1852,  every  share  of  the  48,000  shares  of  the 
Sussex  Company  and  every  fraction  of  every  share  honestly, 
justly,  and  fairly,  and  that  the  Sussex  Company  and  their 
stockholders  have  received  every  cent  which  was  to  be  given 
them  in  return,  amounting,  as  we  have  seen,  to  over  $400,- 
000  in  actual  value  upon  what  they  are  at  this  moment,  and 
have  been  for  the  last  ten  years  receiving  their  regular  di- 
vidends equally  with  the  original  stockholders  of  the  Zinc 
Company;  that  the  Zinc  Company  and  its  stockholders  so 
hold  the  shares  of  the  Sussex  Company  so  transferred  under 
and  precisely  according  to  said  agreement  of  September, 
1851,  and  the  act  of  1852.  There  has  never  been  the  slightest 
intimation  that  a  single  share,  or  fraction  of  a  share,  was. 
transferred  to  the  Zinc  Company,  or  is  now  held,  under  any 
misapprehension  or  mistake  whatever.  Under  these  circum- 
stances, which  of  these  parties,  the  Zinc  Company  or  the 
Franklinite  Company,  is  the  owner  in  equity  of  this  vein  of 
ores  ?  By  the  terms  of  said  agreement,  the  Sussex  Company 
agree  to  convey  to  the  Zinc  Company  all  their  real  and  perso- 
nal estate,  and  all  mines,  minerals,  leases,  and  rights,  and  all 
their  capital  stock,  and  the  Zinc  Company  agree  to  recognize 
and  admit  the  whole  stock  of  the  Sussex  Company  to  the 
same  dividends  as  their  own  ;  they  agree  to  get  an  act  of  the 
legislature  to  enable  them  to  carry  out  such  agreement. 
The  Sussex  Company,  by  the  agreement,  put  the  Zinc  Com- 
pany into  present  possession  of  this  very  vein  of  ores.  Both 
parties,  in  pursuance  of  the  agreement,  apply  to  the  legisla- 
ture, and  get  an  act  enabling  them  to  carry  out  such  agree- 
ment. The  Zinc  Company  perform  the  whole  agreement  on 
their  part,  and  the  Sussex  Company  and  their  stockholders 
pass  over  to  the  Zinc  Company  all  their  stock,  and  receive 
the  stock  of  the  Zinc  Company  in  return.  In  whom  do 
these  facts  vest  the  equitable  titles  to  all  the  property  of  tho 
Sussex  Company,  including  this  vein  of  ores  ?  Most  clearly 
in  the  Zinc  Company — and  that  from  two  considerations.  In 
the  first  place,  for  a  very  valuable  consideration,  the  Sussex 
Company,  by  the  very  terms  of  the  agreement  of  1851,  agreed 
VOL.  ii.  2  D 


430      COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

to  convey  to  the  Zinc  Company  all  their  real  estate,  and  put 
them  into  present  possession  of  the  same,  and  the  Zinc  Com- 
pany paid,  and  the  Sussex  Company  received  the  whole  con- 
sideration money.  Under  these  facts,  the  Sussex  Company 
can  only  stand  seized  of  the  real  estate  to  the  use  of  the  Zinc 
Company,  and  equity  will  protect  such  equitable  estate  and 
its  enjoyment  and  use,  even  against  the  trustee,  if  he  under- 
takes to  use  it  adversely  to  the  cestui  que  use. 

In  the  second  place,  the  Zinc  Company  hold  all  the  stock 
of  the  Sussex  Company  rightly  and  justly,  or  its  stockholders 
do.  If  the  Sussex  Company  hold  the  legal  title  to  the  land, 
its  stockholders  hold  the  equitable  title,  and  here  all  its  stock 
has  been  assigned  or  transferred  to  the  Zinc  Company.  The 
Zinc  Company  therefore,  both  by  virtue  of  the  agreement 
to  sell  and  by  virtue  of  its  being  the  owner  of  all  the  stock  of 
the  Sussex  Company,  is  in  equity  the  owner  of  all  its  real 
estate,  and  entitled  to  its  exclusive  use.  It  is  indifferent, 
therefore,  in  the  present  case,  whether  the  Sussex  Company 
owns  the  title  or  not,-  the  complainants  are  entitled  in  equity 
to  be  protected  in  its  use. 

Let  us  now  see  upon  what  grounds  the  Franklinite  Com- 
pany attempt  to  get  clear  of  this  equitable  title.  The  ori- 
ginal stock  of  the  Sussex  Company  was  600,000  shares,  of 
$12.50  each.  These  have  been  all  sold  and  surrendered  to 
the  Zinc  Company ;  but  the  Franklinite  Company  contend, 
that  after  said  act  of  1852,  two  or  three  of  their  directors 
delayed  transferring  thirty  shares  out  of  the  48,000  until 
2(ith  January,  1863,  when  they  got  the  legislature  to  pass 
an  act,  of  which  the  following  is  a  copy:  "A  further  sup- 
plement to  an  act  entitled,  an  act  to  incorporate  the  Sussex 
Zinc  and  Copper  Mining  and  Manufacturing  Company. 

Be  it  enacted,  that  the  name  of  the  Sussex  Zinc  and  Copper 
Mining  and  Manufacturing  Company  be  and  the  same  is 
hereby  changed  to  that  of  the  New  Jersey  Franklinite  Com- 
pany, and  that  said  company  be  and  is  hereby  authorized  to 
increase  its  capital  to  $1,200,000,  to  be  divided  into  shares  of 
$12.50  each." 


NOVEMBER  TERM,  1862.  431 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

Let  us  now  see  who  got  these  certificates  of  new  shares 
issued  by  the  Zinc  Company  to  the  stockholders  of  the  Sus- 
sex Company  for  their  stock.  There  were  26,140  shares 
issued  altogether  by  the  Sussex  Company  to  individuals. 
Of  these,  20,000  shares  were  issued  to  Samuel  Fowler,  as 
consideration  money  for  the  deed  of  the  10th  March,  1848, 
conveying  this  property  to  the  Sussex  Company.  James  L. 
Curtis  swears  that  he  also  had  several  thousand  shares,  and 
Major  Farrington,  who  was  a  director  in  both  companies, 
perhaps  held  the  balance.  Curtis,  Farrington,  and  Fowler 
were  all  of  them  directors  in  the  Sussex  Company  when  this 
stock  was  transferred,  so  that  by  this  arrangement,  these 
three  directors  of  the  Sussex  Company  must  have  received, 
in  the  year  1852,  from  the  Zinc  Company  stock  to  the 
amount  of  about  $326,000  in  actual  value.  What  did  they 
do  with  the  zinc  stock  they  thus  got  in  exchange  for  their 
Sussex  stock  ?  Farrington  says  his  connection  with  the  Zinc 
Company  ceased  in  1853.  We  find  Curtis,  early  in  1853, 
out  of  the  direction  of  the  Zinc  Company,  and  president  of 
the  Franklinite  Company,  and  had,  he  said,  a  very  large  inter- 
est in  that  company.  We  also  find  Fowler  a  very  large  stock- 
holder in  the  Franklinite  Company  very  shortly  after,  and 
hear  no  more  of  his  connection  with  the  Zinc  Company.  We 
may  therefore  safely  infer  that,  very  shortly  after  they  re- 
ceived this  $400,000  in  new  zinc  stock,  they  also  parted  with 
this  new  zinc  stock,  which  thus  passed  to  other  bona  fide 
purchasers,  and  who  are  part  of  the  persons  in  real  interest 
here  now  defending  their  rights  thus  acquired  in  the  Zinc 
Company  ;  and  now  these  two  or  three  directors,  Curtis,  Far- 
rington, and  Fowler,  having  thus  put  into  their  own  pockets 
$400,000,  thus  derived  from  the  Zinc  Company,  and  having 
put  upon  the  Zinc  Company  all  the  debts  of  the  Sussex  Com- 
pany, and  all  its  stockholders  too,  what  do  these  three  gen- 
tlemen do  ?  We  will  tell  it  in  their  own  language,  for  we  should 
hardly  believe  it  upon  other  evidence.  Major  Farrington 
tells  us  in  the  most  innocent  manner,  as  if  he  could  see 
nothing  unusual  or  wrong  about  it,  that  after  the  act  of  the 
12th  of  February,  1852,  authorizing  the  consolidation  of  the 


432       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

Sussex  and  Zinc  corporations,  that  all  the  shareholders  hold- 
ing certificates  of  Sussex  Company  stock  surrendered  their 
certificates  for  those  of  the  Zinc  Company.  In  this  manner 
the  whole  of  the  stock  of  the  Sussex  Company  became  con- 
verted to  shares  of  the  Zinc  Company  almost  immediately, 
except  about  thirty  shares,  and  the  whole  of  it  ultimately. 

Several  of  us,  who  were  in  the  board  of  directors  of  the 
Sussex  Company  delayed  transferring  over  these  thirty  shares 
to  the  Zinc  Company  for  the  purpose  of  delaying  an  organ- 
ization of  the  Sussex  Company  until  the  action  of  the  legisla- 
ture could  be  had  by  which  the  Franklinite  Company  was 
formed,  and  that,  at  the  next  session  of  the  legislature,  we 
(that  is  these  two  or  three  directors)  applied  for  a  supple- 
ment to  the  charter  of  the  Sussex  Company,  which  was 
granted  ;  and  among  its  provisions  was  one  changing  the 
name  of  the  Sussex  Zinc  Company  to  that  of  the  Franklinite 
Company,  which  was  immediately  organized  after  the  passage 
of  the  act. 

Now  these  two  or  three  directors  seize  upon  all  these 
48,000  shares  of  additional  stock  authorized  as  \ve  have  seen 
by  the  said  act,  and  under  and  by  virtue  of  it,  are  now 
claiming  in  a  court  of  equity  to  hold  all  the  property  which 
the  Sussex  Company  had  agreed  to  convey  to  the  Zinc  Com- 
pany, and  for  which  the  latter  company  had  paid  every  dol- 
lar of  consideration  money.  Can  we  conceive  a  more  gigan- 
tic fraud  than  is  thus  attempted  to  be  practiced  by  these  two 
or  three  directors  under  this  act  of  the  legislature  ?  They 
pocket  from  the  Zinc  Company  several  hundred  thousand 
dollars,  under  an  agreement  to  transfer  to  the  Zinc  Company 
all  the  stock  and  all  the  property  of  the  Sussex  Company, 
and  they  do  actually  pass  over  to  them  the  whole  48,000 
shares  of  the  original  stock  of  the  Sussex  Company,  but 
delay  transferring  about  thirty  shares  thereof  for  a  short 
lime  for  the  purpose,  as  they  imagine,  of  keeping  the  Sussex 
Company  alive  until  the  next  session  of  the  legislature. 
These  two  or  three  directors  then  get  an  act  changing  the 
name  of  the  Sussex  Company  to  that  of  the  Franklinite  Com- 


NOVEMBER  TERM,  1862.  433 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

pany.  Having  then  no  further  use  for  the  thirty  shares, 
they  then  pass  them  over,  too,  to  the  Zinc  Company  at  the 
agreed  price.  Then  seizing  upon  the  whole  48,000  shares 
of  increased  stock,  upon  an  allegation  that  the  legal  title  to 
the  land  owned  by  the  old  Sussex  Company  had  not  been 
legally  transferred  under  the  agreement  of  1851  and  the  said 
act  of  1852,  claim  to  own  again  all  the  old  property  of  the 
Sussex  Company,  and  are  now  actually  here  pressing  us,  sitting 
as  a  court  of  equity,  to  protect  them  in  its  use. 

Little  could  the  Zinc  Company  imagine  the  innumerable 
woes  lurking  under  this  apparently  accidental  delay  in  trans- 
ferring only  thirty  shares  out  of  48,000, — little  could  they 
dream  that  in  the  scientific  alembic  of  Major  Farrington's 
brain  this  innocent  delay  should  work  such  magic  results  as 
to  deprive  them  of  all  their  stock  represented.  Before  the 
Sussex  Company  got  their  name  changed  to  that  of  the 
Franklinite  Company,  all  its  stock,  48,000  shares,  belonged, 
in  law  and  equity,  to  the  Zinc  Company.  This  all  parties 
contend  for  and  admit.  This  the  Franklinite  Company  con- 
tend for  as  well  as  the  Zinc  Company.  The  Franklinite 
Company  repudiate,  equally  with  the  Zinc  Company,  that 
the  old  stock  of  the  Sussex  Company,  transferred  as  afore- 
said, had  any  vitality  after  the  transfer.  The  very  corporate 
existence  of  the  Franklinite  Company  is  based  upon  that 
idea.  The  Franklinite  Company  claim  to  own  this  vein  of 
mixed  ores,  not  under  the  old  stock,  but  under  the  new.  I  re- 
peat that,  on  the  26th  January,  1853,  the  old  $600,000  of 
the  Sussex  Company's  stock  (if  the  Sussex  Company  had 
not  ceased  to  exist  by  virtue  of  the  execution  of  the  agree- 
ment of  September  4th,  1851,)  belonged  to  the  Zinc  Com- 
pany. But  on  that  day  the  legislature  changed  the  name  of 
the  Sussex  Company  to  that  of  the  Franklinite  Company, 
and  presto  it  is  claimed  that  the  property  represented  by  this 
$600,000  of  old  stock  which  belonged  to  the  Zinc  Companv 
the  moment  before,  belonged  to  the  Franklinite  Company 
the  moment  after.  Thus  by  a  stroke  of  the  pen,  in  an  in- 
stant, without  consideration,  without  even  saying  by  your 


434       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  t.  The  Boston  Franklinite  Co. 

leave,  taking  $600,000  out  of  the  pockets  of  the  Zinc  Com- 
pany, and  putting  it  into  the  pockets  of  the  two  or  three  di- 
rectors, who  delayed  a  little  while  transferring  thirty  shares 
out  of  48,000,  so  as  to  have  time  to  accomplish  it,  these  two 
or  three  directors  sell  property,  and  get  two  or  three  hun- 
dred thousand  dollars  cash  value  in  hand  for  it — thus  change 
their  name,  and  it  is  all  back  again.  This  beats  anything  in 
the  Arabian  tales.  It  obscures  the  Alchemist — no  such 
pocket  as  this  was  ever  discovered  in  California.  It  was  the 
easiest  way  of  making  $600,000  I  have  ever  heard  of.  'It 
was  not  to  be  expected  that  so  successful  a  financial  achieve- 
ment should  rest  satisfied  with  one  operation.  It  was  a  lead 
too  promising  not  to  follow;  accordingly  we  find  that  this 
new  Franklinite  Company'  soon  had  a  very  numerous  pro- 
geny. These  companies  immediately  and  rapidly  increased, 
branching  off  from  each  other  like  gamblers  at  vingt-une. 
The  pamphlet  laws  of  those  years  are  plethoric  with  their 
charters,  and  in  which  these  same  two  or  three  directors  are 
the  dii  majores.  Mr.  Fowler  says  that  he  alone  had  stock 
in  no  less  than  fifteen  of  them,  and  he  don't  know  how  many 
more,  viz.  the  Passaic  Company,  the  Fowler  Franklinite 
Company,  the  Union  Exploring  Company,  the  Franklinite 
Steel  Company,  the  National  Paint  Company,  the  Sparta 
Iron  Company,  the  Consolidated  Franklinite  Company,  the 
Tri union  Company,  the  New  York  Franklinite  Company, 
and  we  hear  of  others  through  this  large  volume  of  testi- 
mony, none  of  them  having  less  than  $600,000  of  capital 
stock,  and  most  of  them  over  a  million.  What  oceans  of 
money  they  made  no  one  can  tell.  All  this  while  this  Zinc 
Company  pursued  its  plodding  way,  building  oven  after  oven, 
furnace  after  furnace,  and  factory  after  factory,  expemfing 
in  such  improvements,  upon  the  faith  of  this  transfer  of  stock, 
over  $300,000,  besides  the  very  large  consideration  money  it 
had  paid,  forcing  success  along  the  hard  road  of  industry,  de- 
veloping, according  to  the  true  intent  of  its  charter,  the  ore  of 
zinc,  manufacturing  that  pure  snow-white  paint  for  the  calls 
of  commerce  and  comfort,  convenience  and  elegance  of  life. 


NOVEMBER  TERM,  1862.  435 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

They  were  the  workers  in  the  hive — they  were  the  silk- 
worms painfully  weaving  their  shrouds  of  silken  thread, 
while  this  Franklinite  Company  toils  not,  neither  does  it 
spin — not  an  ounce  of  its  boasted  franklinite  has  it  ever  yet 
yielded  to  the  demands  of  commerce.  It  springs  at  once 
into  the  butterfly  stage  of  its  existence,  whose  only  object  in 
life  is  to  spread  its  golden  wings  to  the  glittering  sunshine 
and  multiply  its  worthless  species.  I  conclude  that  this  act 
of  the  legislature,  changing  the  name  of  the  Sussex  Company 
to  that  of  the  Franklinite  Company,  and  adding  another 
$600,000  to  its  stock,  however  it  may  continue  down  to  the 
Franklinite  Company  any  scintilla  of  legal  title  remaining 
in  the  old  Sussex  Company,  cannot  alter  the  condition  of  the 
questions  of  equitable  right — that  the  broad  fact  still  remains, 
that  before  this  act  was  passed  the  Sussex  Company  had 
agreed  to  sell  the  vein  in  question  to  the  Zinc  Company,  had 
received  the  whole  consideration  money,  had  transferred  to 
the  vendee  all  its  stock  and  put  him  in  possession,  and  if  it 
had  not  transferred  all  its  legal  title,  it  ought  so  to  have 
done,  and  equity  will  treat  it  as  if  it  had. 

Nor  can  the  Franklinite  Company  claim  any  rights,  legal 
or  equitable,  in  the  old  property  of  the  Sussex  Company  by 
virtue  of  the  increased  stock.  The  Franklinite  Company 
must  say,  either  that  they  are  the  old  Sussex  corporation  or  a 
new  corporation.  If  they  are  a  new  corporation,  then  they 
can  have  no  rights  whatever  in  the  old  stock  or  the  property 
of  the  old  company — they  are  neither  its  devisee  or  its  heir. 
But  suppose  the  Franklinite  Company  are,  as  they  claim  to 
be,  the  old  Sussex  corporation  under  a  new  name,  there  are 
some  legal  consequences  which  I  apprehend  the  Franklinite 
Company  have  not  entirely  digested. 

If  the  Franklinite  corporation  is  the  old  one  under  a  new 
name,  who  are  its  stockholders — and  of  the  increased  stock,  as 
well  as  the  old,  how  did  the  individuals  who  have  been  pre- 
tending to  deal  in  it  get  it?  Before  the  name  was  changed  or 
stock  increased  all  the  stock  of  the  corporation  belonged  to  the 
Zinc  Company  or  its  stockholders.  To  whom  did  the  increased 


43G   COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

stock  belong  ?  Clearly  to  those  who  owned  the  old  stock  by 
virtue  of  their  old  stock.  It  follows,  as  a  consequence,  that 
at  tin's  day  the  Zinc  Company  owns  every  dollar  of  the  stock 
of  the  Franklinite  Company,  and  are  as  such  entitled,  in 
equity,  not  only  to  all  the  real  and  personal  estate  still  be- 
longing in  law  or  equity  to  the  old  Sussex  Company,  but  also 
to  all  the  property  of  the  Frrnklinite  Company  since  ac- 
quired, from  whatever  source,  upon  the  principle,  that  tjie 
owners  of  the  stock  of  a  corporation  are,  iii  equity,  the  own- 
ers of  all  its  property.  And  if  we  have  only  the  Sussex 
Company  by  a  new  name  before  us,  under  the  agreement  of 
1851,  and  the  transfer  of  all  its  stock,  the  Zinc  Company,  in 
equity,  own  not  only  this  vein,  but  all  the  other  property  now 
claimed  by  the  Franklinite  Company,  and  that  whether  it  gets 
title  under  the  Fowler  deed  of  1848  or  under  the  Curtis  deed 
of  1850  and  1853,  or  however  otherwise.  It  is  not  the 
Franklinite  Company  who  will  own  in  equity  the  old  pro- 
perty by  virtue  of  its  new  stock,  but  the  Zinc  Company  now 
will  own  the  new  property  by  virtue  of  the  old  stock. 

I  conclude  that  not  only  does  the  Franklinite  Company 
fail  to  prove  any  right  in  equity  to  the  use  of  this  vein,  but 
that  the  proof  shows  affirmatively  that  it  is  in  the  Zinc  Com- 
pany, and  that  such  right  ought  to  be  protected  in  equity, 
even  if  there  is  a  legal  title  in  the  Franklinite  Company. 

But  does  the  proof  show  any  such  legal  title?  This  we 
will  now  proceed  to  examine.  The  Franklinite  Company,  in 
claiming  title  to  this  vein  of  ores  through  the  Fowler  deed 
of  1848,  can  only  do  it  as  being  the  old  Sussex  Company 
under  a  new  name.  If  they  are  a  new  corporation  as  to  this 
property  in  dispute,  they  clearly  show  no  legal  title  to  it. 
They  show  no  deed,  no  consideration  paid,  no  agreement  to 
transfer.  They  only  show  the  act  changing  the  name,  and 
as  such  cannot  be  either  the  heir  or  devisee  of  the  Sussex 
Company.  That  the  Franklinite  Company,  as  to  this  vein 
of  ores,  is  a  new  corporation,  and  not  the  old  Sussex  corpora- 
tion under  a  new  name,  has  been  substantially  already  adjudi- 
cated at  the  solicitation  of  both  parties. 


NOVEMBER  TERM,  1862.  437 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

After  the  act  creating  the  Franklinite  Company  in  1853, 
the  Franklinite  Company  waited  formally  upon  the  Zinc 
Company,  and  demanded  of  them  the  old  charter ;  the  Zinc 
Company  demurred,  and  it  was  finally  left  to  Judge  Kent, 
who  decided  that  the  Zinc  Company  had  no  claim  on  the 
charter,  and  in  consequence  thereof,  on  the  25th  of  October, 
1853,  the  Zinc  Company  resolved  as  follows :  "  that  the  Zinc 
Company  acknowledges  that  it  has  no  claim  of  any  kind  or 
description  on  the  charter  of  the  New  Jersey  Franklinite 
Company  or  to  any  of  the  privileges  thereby  conferred,  and 
that  the  president  of  this  company  is  hereby  authorized  to 
furnish  a  certified  copy  of  this  resolution  to  the  president  of 
the  Franklinite  Company."  It  is  perfectly  apparent  upon 
what  grounds  Judge  Kent  must  have  proceeded ;  for  if  he 
had  not  thought  that  the  Franklinite  Company,  as  to  the  old 
property  of  the  Sussex  Company,  was  a  new  corporation,  the 
Zinc  Company,  instead  of  having  no  claim  on  the  charter  of 
the  old  Sussex  Company,  would  be  the  only  party  that  had. 
But  if  the  Franklinite  Company,  as  to  the  old  property,  was 
a  new  corporation,  then  as  clearly  they  had  not.  Judge 
Kent  must  therefore  have  looked  upon  the  action  of  the 
legislature  of  1853  as  creating  a  new  corporation  in  rather  a 
novel  way,  whose  directors  and  powers  were  defined  by  the 
original  Sussex  charter,  and  that  therefore  the  Franklinite 
Company  had  an  interest  in  the  old  charter,  and  that  the 
Zinc  Company  had  not.  And  the  same  is  implied  by  the 
language  of  the  resolution,  which  disclaims,  on  the  part  of 
the  Zinc  Company,  all  interest  not  in  the  Sussex  charter,  but 
in  the  charter  of  the  New  Jersey  Franklinite  Company. 

I  am  of  opinion  that  the  Franklinite  corporation,  as  re- 
gards the  Zinc  Company  and  the  old  property  and  stock  of 
the  Sussex  Company,  are  a  new  corporation,  and  have  no 
legal  title,  and  have  and  hold  none  of  the  legal  rights  of 
property  that  belonged  to  the  Sussex  Company.  The  Frank- 
linite Company  have  in  every  respect  acted  like  a  new  cor- 
poration. They  treated  the  increased  stock  as  the  stock  of 
a  new  corporation ;  they -bought  other  lands,  and  went  into 


438      'COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  t.  The  Boston  Franklinite  Co. 

business  as  a  new  corporation  under  its  new  stock — not  a 
single  share  of  the  old  stock  has  ever  been  represented  in  any 
of  its  proceedings  or  voted  upon  for  any  of  its  officers.  The 
only  solitary  act  in  ten  years  that  the  Franklinite  Company 
lias  done,  otherwise  than  as  a  new  corporation,  is  this  claim 
to  own  the  old  property  under  its  new  stock.  The  Zinc  Com- 
pany, having  been  put  in  possession  by  the  old  Sussex  Com- 
pany, and  the  Franklinite  Company  showing  no  legal  title, 
surely  have  no  right  at  law  or  in  equity  to  disturb  the  Zinc 
Company  in  the  use  of  the  property  in  dispute. 

But  there  is  still  another  difficulty  in  the  legal  title  of  the 
Franklinite  Company  to  this  vein  of  ores.  On  the  8th  of 
March,  ]852,  a  year  before  this  Franklinite  Company  wa? 
formed,  the  Sussex  Company  made  to  the  Zinc  Company  a 
deed,  in  which  the  property  intended  to  be  conveyed  is  de- 
scribed as  follows:  do  grant,  &c.,  "all  the  zinc  and  other 
ores,  except  franklinite  and  iron  ores  found  or  to  be  found 
in,  on,  or  upon  the  following  described  premises,  that  is  to 
say,  that  certain  farm,  situate  in  the  township  of  Hardyston, 
Sussex,  New  Jersey,  consisting  of  several  contiguous  tracts : 
first,  the  Mine-hill  farm,  consisting  of  93.16  acres,  butted 
and  bounded  as  follows:  beginning,"  &c.,  and  describing  it  by 
metes  and  bounds;  and  after  doing  so,  proceeds  in  the 
following  words :  "  together  with  all  and  singular  the  tene- 
ments, hereditaments,  and  appurtenances  thereunto  belong- 
ing or  in  anywise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and 
profits  thereof;  and  also  all  the  estate,  right,  title,  interest, 
property,  claim,  and  demand  whatsoever,  as  well  in  law  as 
in  equity,  of  the  said  parties  of  the  first  part  of,  in,  and  to 
the  above  described  premises,  and  every  part  and  parcel 
thereof,  with  the  appurtenances,  to  have  and  to  hold,"  &c. 
There  may  be,  perhaps,  in  this  description  one  latent  and 
two  patent  ambiguities.  The  first  patent  ambiguity  may  be 
caused  by  the  words  "  all  the  zinc  and  other  ore*,  except 
franklinite."  Are  we  to  read  this  as  if  the  language  were, 
all  the  zinc  except  the  franklinite,  or  as  if  it  were  all  the 


NOVEMBER  TERM,  1862.  439 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

other  ores  except  the  franklinite.  My  opinion  is  that  the 
latter  is  the  true  construction,  and  that  the  franklinite  is  to 
be  excepted  from  the  other  ores,  and  not  from  the  zinc,  that 
the  zinc  ores  are  to  be  conveyed  and  all  the  other  ores  except, 
franklinite  and  iron  ores. 

The  other  patent  ambiguity  originates  in  the  words,  "  and 
also  all  the  estate,  &c.,  of  the  parties,  &c.,  of,  in,  and  to  the 
above  described  premises."  Do  the  words,  "  above  described 
premises"  refer  to  the  words  in  the  first  of  the  description, 
all  the  zinc  and  other  ores,  or  to  the  premises  described  by 
metes  and  bounds  ?  I  am  of  the  opinion  that  they  refer  to 
the  latter.  We  are  not  inquiring  as  to  the  effect  of  these 
words  if  they  had  been  inserted  in  the  habendum  clause, 
but  as  to  what  is  their  legal  effect  when  used  as  words  describ- 
ing the  property  conveyed.  The  language  used  here  has 
precisely  the  same  legal  effect  as  if  the  description  had  read, 
"all  the  zinc  and  other  ores  found  in,  also  all  the  estate  of  the 
parties  of  the  first  part  of,  in,  and  to  the  following  described 
premises,  that  is  to  say,"  &c.,  and  then  describing  it  by  metes 
and  bounds.  The  deed,  upon  the  face  of  it,  was  evidently 
intended  to  convey  not  only  the  zinc  eras,  but  also  all  the 
estate  the  grantors  had  in  the  premises  described — clearly 
as  much  so  as  if  the  deed  had  omitted  the  words  zinc  ores, 
and  had  merely  said,  we  convey  all  our  right  and  title  to  the 
premises,  butted  and  bounded  as  follows. 

The  result  of  this  conclusion  is,  that  as  both  parties  have 
claims  under  the  Sussex  company,  and  so  admit  that  the  Sus- 
sex Company  owned  this  vein  of  ores  in  dispute,  I  say  the  re- 
sult is,  that  this  vein  in  dispute  passed  by  the  very  terms  of 
this  deed  to  the  Zinc  Company.  It  has  been  argued  that  this 
construction  would  destroy  the  exception.  I  do  not  see  how. 
The  exception  would  have  been  there  quite  as  appropriately 
if  the  grantors  did  not  claim  to  own  the  franklinite  at  all,  and 
which,  by  the  way,  the  case  shows  they  did  not  claim  to 
own,  for  they  bought  it  afterwards  of  James  L.  Curtis  and 
his  brother.  It  is  also  argued  that  this  construction  would 
operate  to  pass  the  absolute  fee  in  the  land  itself.  But  not  so 


440       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

if  they  did  not  own  it,  and  that  they  did  not  pretend  to;  and 
if  they  did,  and  used  that  language,  it  ought  to  pass,  unless 
they  alleged  some  mistake  or  misapprehension,  which  is  not 
pretended.  It  is  also  argued  that  these  terms,  if  used  in  the 
habcndum  clause,  are  limited  to  mean  the  thing  granted. 
This  is  admitted.  But  it  so  happens  that  these  terms  here  are 
not  in  the  habendum  clause,  but  in  the  clauses  describing  the 
properly  conveyed,  and  by  the  terms  of  the  deed  this  right 
and  estate  of  the  grantors  is  as  much  the  thing  granted  as  the 
ores  themselves.  The  things  granted  here  are  the  ores  and 
the  grantor's  estate  in  the  premises  described  by  metes  and 
bounds.  The  words  are  not  used  to  alter  or  enlarge  the  ex- 
tent of  the  grant,  but  it  is  the  very  thing  itself  granted. 

If  we  are  right  in  this  construction  of  the  deed,  it  is  very 
evident  that  the  Franklinite  Company  have  not  a  scintilla  of 
legal  or  equitable  rights. 

But  as  the  decree  below  proceeds  upon  the  finding  that 
the  evidence  shows  that  at  the  execution  of  the  deed  the 
parties  thereto  understood  that  this  vein  in  question  was 
not  a  zinc,  but  a  franklinite  ore,  and  so  excepted  from  the 
deed ;  and  as  that  question  was  veiy  forcibly  and  earnestly 
argued  at  the  hearing,  we  will  proceed  to  examine  that 
question  more  at  large. 

The  Zinc  Company  contend  that,  by  the  term  zinc  ores 
in  this  deed,  both  parties  intended  this  vein  of  ores.  The 
Franklinite  Company  contend  that  they  did  not;  that  this 
vein  is  not  a  zinc,  but  a  franklinite  ore,  and  so  was  intended 
to  be  excepted.  This  is  a  latent  ambiguity,  and  only  to  be 
solved  by  the  evidence,  and  the  object  of  the  evidence  is  to 
ascertain  the  meaning  attached  by  the  parties  to  the  words 
used  at  the  time  of  the  execution  of  the  deed.  But  how  are 
we  to  ascertain  this  meaning? 

The  most  certain  way  of  fixing  the  meaning  of  the  terms 
of  description  used  in  a  deed  was  the  old  common  law  practice 
of  livery  of  seizin.  In  this  case,  if  the  parties  had  gone  upon 
the  mass  of  ore  in  situ  and  made  livery,  by  whatever  name 
they  might  have  called  it,  the  identical  mass  of  ore  would 


NOVEMBER  TERM,  1862.  441 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

have  passed.  The  parties  would  have  demonstrated  on  the 
ground  what  thing  they  meant  by  the  term  "  zinc  ores,"  as 
if  a  man  takes  a  horse  by  the  bridle,  and  says,  I  sell  you  this 
cow,  and  delivers  the  article,  the  horse  would  pass.  But 
when  the  conveyance  is  by  deed  of  bargain  and  sale,  and  the 
thing  sold  is  only  designated  by  arbitrary  signs,  the  only 
way  to  ascertain  the  mind  of  the  parties  is  to  attach  the  sign 
to  the  thing  sold  in  the  best  way  possible ;  and  when  there  is 
any  doubt  what  thing  the  sign  stands  for,  it  is  necessarily  a 
matter  of  proof,  and  the  thing  to  determine  is  the  weight  of 
the  evidence. 

What,  then,  was  meant  by  the  parties  at  the  time  they 
used  the  term  zinc  ores  in  this  deed  ?  Did  they  mean  this 
vein  in  dispute?  The  Zinc  Company  say  they  did — the 
Franklinite  Company  say  they  did  not.  They  say  that  this 
vein  was  not  a  zinc  ore  at  all,  but  a  franklinite  ore  and  not 
a  zinc  ore,  and  that  instead  of  intending  to  convey  this  as  a 
zinc  ore,  they  intended  to  except  it  as  a  franklinite  ore.  In 
ascertaining  this  intent,  I  shall  first  call  attention  to  the 
condition  of  the  property  at  the  time  of  the  execution  of  the 
deed. 

The  evidence  establishes  beyond  dispute  that  if  this  vein 
in  dispute  is  not  a  zinc  ore  there  is  no  zinc  ore  on  the  pro- 
perty at  all,  and  that  both  parties  must  have  perfectly  well 
known  at  the  execution  of  the  deed.  It  is  also  perfectly 
well  established,  by  the  evidence,  that  if  this  vein  is  not  a 
zinc  ore,  that  there  are  no  ores  on  the  property  but  iron  ores, 
including  this  franklinite,  a  species  of  iron  ore,  and  which 
all  parties  also  perfectly  well  knew.  The  evidence  also  shows 
that  this  vein  had  been  known  and  worked  for  a  century  as 
an  ore  yielding  a  large  percentage  of  metallic  zinc,  and  from 
which  the  zinc  for  the  United  States  standard  weights  and 
measures  was  obtained. 

The  evidence  also  shows  that  there  were  no  other  ores  on 
the  premises  except  this  vein  of  franklinite  and  iron  ores, 
and  all  parties  well  knew  it.  Now,  may  we  not  ask,  if  it  was 
not  the  intention  to  convey  this  vein  by  the  name  of  a  zinc 


442       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

ore,  what  did  the  parties  intend  to  convey?  It  is  apparent, 
that  if  they  did  not  intend  to  convey  this  vein  by  the  name 
of  a  zinc  ore,  it  must  have  been  the  intent  of  both  parties  to 
convey  nothing.  I  think  these  facts  show  that  it  must  have 
been  the  intent  to  convey  this  vein  by  the  name  of  a  zinc 
ore,  for  there  is  nothing  else  upon  which  the  deed  could 
operate,  and  both  parties  must  have  known  it.  There  is 
nothing  upon  this  property  but  this  vein  of  franklinite 
and  iron  ore.  The  franklinite  and  iron  ores  are  ex- 
cepted  in  terms,  and  if  this  vein  was  meant  to  be  excepted 
as  franklinite  the  deed  conveys  nothing,  as  both  parties  must 
have  known.  Under  these  circumstances,  we  can  draw  no 
other  conclusion  than  that  the  parties  meant  to  convey  some- 
thing by  the  deed,  and  that  could  only,  as  both  parties  must 
have  known,  have  been  the  vein  in  question.  That  the  par- 
ties must  have  intended  to  convey  this  vein  as  a  zinc  ore,  and 
not  make  a  deed  that  conveyed  nothing,  is  further  proved  by 
the  consideration  given.  The  Zinc  Company  had  a  capital 
of  $600,000,  divided  into  48,000  shares,  and  which  were 
then  selling  at  about  par.  This  capital  stock  was  then 
doubled,  and  they  gave  the  whole  of  their  increased  capital 
for  this  deed.  Now  are  we  to  believe  that  the  Zinc  Com- 
pany would  give,  and  the  Franklinite  Company  take  48,000 
shares  of  the  Zinc  Company  stock  for  a  deed  which  both  par- 
ties must  have  known  conveyed  nothing  ?  We  can  only 
conceive  this  upon  the  supposition  that  both  parties  thought 
that  this  vein  was  passed  by  the  deed  under  the  name  of 
zinc. 

But  again :  it  is  manifest,  from  the  evidence,  that  the  vein 
of  ores  was  owned  by  the  grantor,  and  that  it  was  the  only 
thing  he  did  own  in  the  premises.  As  the  grantor  got  this 
large  consideration,  must  it  not  have  been  the  intent  to  con- 
vey the  thing  he  owned?  Can  we  believe  he  intended  to 
convey  something  he  did  not  own?  Must  it  not,  therefore, 
have  been  the  intent  of  the  parties  to  convey  this  vein  under 
the  name  of  zinc  ?  Another  evidence  that  this  vein  was  in- 
tended by  the  parties  to  pass  under  the  name  of  zinc,  is  that 


NOVEMBER  TERM,  1862.  443 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

in  all  other  deeds,  ancient  and  modern,  this  vein  has  been 
passed  and  repassed,  reserved  and  re-reserved,  under  the 
name  of  a  zinc  ore,  and  this  deed  now  in  controversy  is  the 
first  one  where  it  was  ever  pretended  that  it  did  not  pass  by 
that  name.  Thus,  in  the  deed  from  Doct.  Fowler  and  his  as- 
signees, the  deed  conveys  all  the  zinc  and  iron  ores  in  Mine- 
hill.  Now,  in  all  the  ancient  deeds,  of  what  material  thing 
was  the  word  zinc  a  sign  ?  There  is  no  such  word  as  frank- 
linite  in  any  of  them  until  this  deed  of  Fowler  in  1848.  In 
all  the  ancient  deeds,  does  not  the  word  zinc  stand  as  a  sign 
for  this  vein  in  dispute?  It  will  be  remembered  that  Far- 
rington,  the  main  witness  for  the  Franklinite  Company,  says: 
"  There  are  the  remains  of  several  old  pits  along  the  line  of 
the  vein,  some  of  which  look  as  though  they  might  have  been 
made  one  hundred  years  ago."  Now,  where  we  find  the  an- 
cient as  well  as  the  modern  deeds  conveying  the  zinc  and 
iron  ores,  is  it  not  apparent  that  by  the  zinc  ores  they 
mean  this  vein  ?  How  does  it  happen  that,  if  this  vein  had 
ever  been  known  not  as  a  zinc  vein,  but  only  as  a  franklinite 
ore,  it  is  never  so  called  in  any  deed,  ancient  or  modern  ?  If 
there  was  no  zinc  in  the  mine-hill,  how  does  it  happen  that 
the  deeds  are  always  professing  to  convey  all  the  zinc  ores, 
and  say  nothing  about  franklinite  ?  On  the  15th  of  February, 
1845,  Oaks  Ames  made  a  deed  to  Cyrus  Alger,  under  whom 
Samuel  Fowler  held,  as  follows  :  "  in  consideration  of  $2500, 
I  bargain  and  sell  to  Cyrus  Alger  the  one  undivided  half 
pa*rt  of  all  the  zinc  and  other  ores  and  minerals  on  or  within 
any  of  the  lands  owned  by  Samuel  Fowler,  excepting  iron 
ores  when  unencumbered  with  zinc  and  other  metals."  The 
Franklinite  Company  claim  the  vein  in  question  under  this 
deed,  and  yet  the  word  franklinite  is  not  in  the  deed.  Now, 
as  this  vein  was  the  only  one  of  value  except  iron  ore  un- 
combined  with  zinc,  it  is  passing  strange  that  if  this  vein  was 
then  known  as  a  franklinite,  and  not  as  a  zinc  vein,  the  only 
thing  that  was  intended  to  be  conveyed  was  not  even  named, 
while  all  the  terms  employed  relate  to  zinc  ores,  of  which, 
if  this  vein  was  not  intended  to  be  passed  as  zinc  ore,  both 


444       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

parties  knew  there  \vas  not  a  particle  on  the  property.  This 
deed  proves  that  up  to  1845,  no  one,  in  dealing  with  this  vein 
as  an  article  cf  sale  or  purchase,  ever  thought  of  calling  it  a 
franklinite  ore,  for  the  very  obvious  reason,  that  this  frank- 
linite  mineral  was  entirely  worthless.  The  vein  was  only 
valuable  for  the  zinc  that  was  in  it.  / 

Let  us  now  examine  this  deed  of  1848,  and  see  if  Fowler 
himself  does  not,  in  this  very  deed,  convey  this  vein  to  the 
Sussex  Company  under  the  name  of  zinc  and  not  under  the 
name  of  franklinite.  Chancery  has  found  that  this  deed  did 
convey  this  vein,  and  I  entirely  agree  both  with  its  reasoning 
and  its  result.  The  language  of  this  deed  is  "  do  bargain," 
&c.,  "all  the  zinc,  copper,  lead,  silver,  and  gold  ores,  and  also 
all  other  metals  and  ores  containing  metals  (except  the  metal 
or  ore  called  frank  Unite  and  iron  ores,  where  it  exists  sepa- 
rate from  the  zinc)  existing,  found,  or  to  be  found  on  that 
certain  farm,"  &c.  This  vein  passed,  if  it  passed  at  all,  by 
the  force  of  the  words  of  grant,  and  not  by  the  force  of  the 
words  of  exception.  With  respect  fo  this  deed,  the  Franklin- 
ite Company  take  contradictory  positions.  They  first  contend 
that  this  deed  of  1848  does  not  convey  this  vein  to  the  Sus- 
sex Company  at  all,  and  in  the  second  place  they  contend 
that  it  did  pass  it,  but  that  it  never  has  been  passed  by  deed 
from  the  Sussex  Company  to  the  Zinc  Company,  but  still  re- 
mains in  the  Franklinite  Company,  as  being  the  old  Sussex 
Company  under  another  name.  I  shall  first  consider  the 
position  taken  by  the  Franklinite  Company,  that  this  vein 
did  not  pass  at  all  by  this  deed  of  1848  from  Fowler  to  the 
Sussex  Company.  Upon  this  point  the  Franklinite  Company 
contend  that,  as  regards  the  words  "  except  the  metal  or  ore 
called  franklinite  and  iron  ores,  where  it  exists  separate  from 
the  zinc,  that  the  words  "  where  it  exists  separate  from  the 
zinc  "  apply  only  to  the  words  "  iron  ores,"  and  not  to  the 
word  "  frankliiiite,"  and  that  the  vein  in  question  is  a  frank- 
linite ore,  and  not  a  zinc  ore,  and  that  the  vein  is  conse- 
quently excepted  from  the  grant  under  the  name  of  frank- 
linite. But  the  evidence  clearly  shows  that  at  the  date  of 


NOVEMBER  TERM,  1862.  445 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

this  deed  all  parties  perfectly  well  knew  that  the  only  ores 
or  metals  in  this  Mine-hill  were  zinc,  frauklinite  and  iron 
ores,  and  that  if  this  vein  was  not  a  zinc  vein  of  ores  there 
was  no  zinc  on  the  premises;  and  as  the  franklinite  and 
iron  ores  are  exccptcd  in  terms,  it  follows,  under  this  con- 
struction, that  the  deed  conveyed  nothing.  The  deed  shows 
that  the  Sussex  Company  gave  20,000  shares  of  stock,  which 
at  its  par  value  was  $250,000,  for  this  deed.  It  is  therefore 
utterly  impossible  to  believe  that  the  Sussex  Company  could 
give  this  large  price  for  a  deed  Avhich  they  must  have  known 
conveyed  nothing.  The  only  possible  way  to  explain  it  is, 
that  this  vein  was  regarded  on  all  hands  as  a  zinc  vein,  and 
passed  tinder  the  deed  by  the  name  of  zinc. 

Taking  the  franklinite  construction  of  the  deed  as  the  true 
one,  it  leaves  in  this  deed  of  1848  the  same  latent  ambiguity 
as  in  the  one  of  1852,  viz.  what  is  meant  by  the  term  zinc 
ores  in  the  words  of  grant,  and  by  which  the  evidence  shows 
the  parties  must  have  intended  this  vein  of  ores.  But  the 
latent  ambiguity  in  the  deed  of  1848  is  cleared  up  by  fur- 
ther description.  By  the  true  construction  of  the  deed  of 
1848,  the  words,  "when  it  exists  separate  from  the  zinc," 
applies  to  the  franklinite,  it  only  excepts  franklinite  which 
exists  separate  from  zinc,  and  of  course  conveys  franklinite 
when  it  is  not  separate  from  the  zinc,  and  as  the  proof  shows 
this  vein  is  here  mixed  mechanically  with  franklinite,  it  all 
passes.  That  this  deed  of  1848  passes  this  vein  with  the 
franklinite  mixed  with  it  is  manifest  from  many  considera- 
tions. In  the  first  place,  it  is  the  true  legal  construction  of 
the  language  of  description.  This  is,  "all  the  zinc  and  other 
ores,  except  the  metal  or  ore  called  franklinite  and  iron  ores, 
where  it  exists  separate  from  the  zinc."  This  is  the  first 
deed  in  which  the  word  franklinite  was  ever  used.  In  all 
previous  deeds  this  franklinite  had  always  been  conveyed 
under  the  name  either  of  zinc  or  an  iron  ore.  Franklinite 
was  not  properly  either  a  metal  or  an  ore;  it  was  zinc  and 
iron  in  chemical  combination,  and  thus  could  no  more  be  an, 
ore  of  franklinite  than  there  could  be  an  ore  of  brass. 

VOL.  H.  2  E 


446       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

The  draftsman  of  this  deed  of  1848,  when  lie  came  to 
make  this  exception,  was  in  doubt  what  precise  terms  to  use  ; 
he  was  in  doubt  which  precise  effect  would  be  given  to  the 
term  franklinite,  as  it  never  before  had  been  used  in  any 
deed.  It  had  always  before,  when  existing  separate  from 
zinc,  and  when  not  regarded  merely  as  a  dross  mixed  with 
the  zinc,  been  regarded  as  an  iron  ore,  and  is  so  treated  and 
claimed  by  the  Franklinite  Company  in  all  their  proceedings. 
He  therefore,  in  this  exception,  calls  it  by  both  names,  172. 
"  excepting  the  ore  or  metal  called  frankliuitc  and  iron  ores," 
having  the  word  "called  "  understood  before  the  word  "iron" 
as  well  as  before  the  word  "franklinite,"  inadvertently  using 
the  plural  of  ore,  by  "reason  of  its  immediately  following  the 
two  words,  "franklinite  and  iron."  There  was  only  one 
thing  meant  to  be  exeepted,  and  that  was  the  thing  called 
both  franklinite  and  iron  ore,  and  that  only  when  it  existed 
separate  from  the  zinc.  If  it  had  been  intended  to  except 
two  tilings,  viz.  a  thing  that  was  called  franklinite  and  a 
different  thing  that  was  called  iron  ore,  the  language  would 
not  be  what  it  is,  but  it  would  naturally  have  been  as  fol- 
lows, viz.  excepting  the  metal  or  ore  called  franklinite,  and 
also  excepting  the  iron  ores  when  they  exist  separate  from 
the  zinc.  This  is  further  manifest  from  the  word  "it"  fol- 
lowing the  words  "  iron  ores."  We  can  only  account  for  the 
use  of  the  word  "it"  in  that  connection  by  the  supposition  that 
the  writer  intended  to  except  one  thing,  viz.  something  that 
was  called  indifferently  franklinite  or  iron  ore.  If  it  had  been 
intended  to  apply  the  words,  when  separate  from  zinc  and 
iron  ores,  the  language  would  have  been  when  "they,"  (not 
"  it,")  exist  separate  from  the  zinc.  But  suppose  we  change 
the  word  "it"  into  "they"  the  construction  would  still  be 
the  same.  The  language  of  the  deed  would  be,  except  all 
the  ores  called  franklinite  and  iron  ores  where  they  exist  sepa- 
rate from  the  zinc.  But  that  it  was  intended  by  the  parties 
to  except  the  franklinite  where  it  exists  separate  from  the 
xinc  is  perfectly  manifest  from  the  habendnm  clause.  This 
is  as  follows :  "  to  have  and  to  hold  all  and  every  the  zinc, 


NOVEMBER  TERM,  1862.  447 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

&c.,  and  other  metals  and  ores,  excepting  the  one  called 
franklinitc,  when  it  exists  in  a  separate  and  distinct  state  from 
the  zinc." 

I  do  not  see  what  possible  ambiguity  can  remain  in  .the 
exception  in  the  words  of  grant  after  reading  the  exception 
as  defined  and  emphasized  in  the  habendum  ;  and  as  the  proof 
amply  shows  that  what  franklinite  there  is  in  the  vein  is  not 
separate  from  zinc,  but,  on  the  contrary,  so  intimately  mixed 
mechanically  with  the  zinc  as  that  it  cannot  be  separated 
from  it,  it  cannot  be  that  the  parties  did  not  intend  to  con- 
vey this  vein  under  the  name  either  of  zinc  or  "  other  ores 
or  metals."  But  I  go  further — not  only  docs  the  deed  of 
1848  convey  this  vein  by  its  terms,  but  it  conveys  it  by  the 
name  of  zinc  ore.  As  what  passes  must  be  of  grant,  and  not 
by  force  of  the  words  of  exception,  the  vein  must  pass 
either  by  force  of  the  words  "  all  zinc  ores "  or  by  force  of 
the  words  "  all  other  ores."  The  Franklinite  Company  contend 
that  this  vein  was  called  a  franklinite  vein,  and  that  it  passes 
therefore  under  the  words  "  other  ores,"  which  would  com- 
prehend frankliuite.  The  exception  shows  that  it  was  not 
intended  to  convey  all  the  franklinite,  but  only  the  frank- 
linite ores  mixed  with  the  zinc  ores.  Taking  the  words  of 
grant  and  of  exception  together,  it  is  the  same  in  legal 
effect  as  if  it  had  read,  we  sell,  &c.,  all  the  zinc  ore  and  all 
the  franklinite  ore  mixed  with  the  zinc  ore.  Now  the  vein 
would  not  pass  simply  by  the  words  franklinite  ore  mixed  or 
not  separated  from  the  zinc  ore.  That  would  only  pass  the 
frauklinite  portion  of  it,  leaving  the  title  to  the  zinc  part  of 
the  ore  in  Fowler.  The  zinc  part  of  the  vein  must  neces- 
sarily, therefore,  have  passed  by  force  of  the  words,  "  all  the 
zinc  ore;"  so  that  it  must  have  been  the  intent  of  the  parties 
in  this  deed  of  1848  to  have  conveyed  at  least  the  zinc  por- 
tion of  this  vein  under  the  name  of  zinc  ore,  and  not  under 
the  name  of  a  franklinite  ore. 

Again  :  the  whole  object  of  this  deed  of  1848  was  to  convey 
this  vein.  It  was  the  only  thing  Fowler  owned  in  the  pre- 
mises, and  was  the  only  thing  there  of  any  value.  If  the  vein  had 


448       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  t>.  The  Boston  Franklinite  Co. 

been  understood  and  called  by  the- parties  a  franklinite,  and 
not  a  zinc  ore,  how  did  it  happen  that  the  term  franklinite  is 
not  used  in  the  words  of  grant?  The  deed  uses  the  words, 
all  the  zinc,  copper,  silver,  and  gold  ores — of  which  the  de- 
fendants say  there  was  none,  not  even  zinc,  and  the  only  thing 
they  say  was  there,  viz.  franklinite  ore,  is  not  in  the  words  of 
the  grant  at  all.  We  can  only  answer  for  this  upon  the  sup- 
position that  at  the  time  all  parties  understood  this  vein  to  be 
a  vein  of  zinc  ore,  and  that  the  worthless  franklinite  passed 
with  it  as  its  dross,  and  the  object  of  the  exception  was  to  pre- 
vent franklinite,  when  separate  and  distinct  from  the  zinc  ore, 
from  passing  under  the  name  of  other  ores. 

But  again  :  by  whatever  name  this  vein  may  have  gone  by 
among  men  of  science,  it  was  not  conveyed  in  this  deed  of 
1848,  nor  had  it  ever  before  been  conveyed  by  any  deed,  an- 
cient or  modern,  under  the  name  of  franklinite.  But  there 
are  many  other  considerations,  considering  the  words  zinc 
and  franklinite  as  latent  ambiguities,  which  go  to  show  that 
this  vein  was  intended  to  be  conveyed  in  this  deed  of  1848 
under  the  name  of  zinc  ore.  Major  Farrington,  the  main 
witness  of  the  Franklinite  Company,  and  who,  by  his  in- 
terference with  the  deed  of  1852, , made  this  whole  contro- 
versy, says  "  the  Sussex  Company  was  an  organization  tinder 
a  charter  formed  for  the  purpose  of  manufacturing  zinc  from 
ores  obtained  in  Sussex  county.  They  purchased  zinc  ores 
upon  Mine-hill."  Now,  as  there  is  no  pretence  that  they  ever 
acquired  any  zinc  ore  except  this  vein,  they  must  have  got 
it  by  virtue  of  this  deed  of  1848,  under  the  term  zinc  ore, 
in  that  deed.  Again,  the  very  title  of  the  act  of  this  Sussex 
Company  was  the  Sussex  Zinc  Mining  and  Manufacturing 
Company.  They  wanted  zinc,  not  franklinite  ore, — nay  more, 
as  soon  as  they  got  this  deed  they  went  immediately  into  pos- 
session and  at  work  upon  this  vein  as  a  zinc  ore,  mined  several 
hundred  tons,  but  did  not  pursue  it  long,  not  because  there  was 
not  plenty  of  zinc  ore  in  it,  but  because  it  was  not  in  the  form 
of  a  red  oxide.  So  that  it  is  perfectly  manifest  that  in  this 
very  deed  of  1848,  under  which  all  these  parties  claim  this 


NOVEMBER  TERM,  1862.  448 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

vein,  was  bought  and  sold,  in  consideration  of  §25,000,  under 
the  name  of  a  zinc,  and  not  a  franklinite  ore. 

But  there  is  another  curious  cotemporary  fact  showing 
that  this  deed  of  1848  conveyed  this  vein  under  the  name  of 
zinc.  At  the  same  time  that  Fowler  made  this  deed  we  have 
spoken  of  he  made  another  deed,  without  any  consideration,  to 
the  Sussex  Company  for  all  the  franklinite  specially  by  name, 
on  a  portion  of  the  very  premises  described  in  said  deed  of  1848. 
The  language  of  this  last  deed  is,  "all  the  metal,  mineral,  or 
iron  ore  usually  known  and  designated  by  the  name  of  frank- 
linite, found  or  to  be  found  on,  upon,  or  in  a  certain  tract  of 
land,"  going  on  and  'describing  a  part  of  the  very  premises 
described  in  the  deed  conveying  the  zinc  ore.  Samuel  Fowler, 
one  of  the  other  main  witnesses  for  the  Franklinite  Company, 
being  asked,  "  after  you  conveyed  the  zinc  and  other  ores  to 
the  Sussex  Company  by  the  deed  of  the  10th  March,  1848,  did 
you  make  a  separate  conveyance  to  that  company  of  frank- 
linite," answers,  "after  I  agreed  to  convey  the  zinc  ore  to 
the  company,  I  agreed  to  convey,  and  did  convey,  in  March, 
1848,  the  franklinite  ore  on  a  piece  of  the  land  on  Mine-hill 
farm  ;"  so  that,  by  the  testimony  of  the  very  man  who  made 
this  deed  under  whom  all  parties  claim,  says  that  he  made  the 
first  deed  to  convey  zinc  ore,  and  the  later  deed  to  convey 
franklinite  ore — must  he  not  therefore  have  intended  to  con- 
vey, and  he  did  not  actually  convey  this  vein  in  the  first  deed 
by  the  name  of  zinc?  Why,  if  the  parties  then  had  regarded 
this  vein  as  franklinite,  and  not  zinc,  what  was  the  object  of 
making  the  second  deed?  They  got  all  the  franklinite  by 
the  first  deed.  By  the  theory  of  the  defence,  this  vein  is 
franklinite,  and  not  zinc,  and  the  second  deed  had  nothing 
to  operate  on.  These  facts  conclusively  show  that  the  object 
of  Fowler's  first  deed  was  to  convey  to  the  Sussex  Company 
this  vein  under  the  name  of  zinc  ore,  and  to  convey  by  the 
second  deed  franklinite  not  so  mixed  with  zinc  as  to  pasa 
under  the  name  of  zinc  ore.  But  not  only  is  this  vein  pass- 
ed as  a  zinc  ore  in  this  deed  of  1848,  but  again  it  so  passed 
to  Fowler  in  the  deed  from  Alger  in  1849.  But  not  only  so, 


450       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

it  is  so  conveyed  and  confirmed  again  in  Fowler's  deed  of  con- 
firmation in  1849.  But  again,  not  only  do  all  the  ancient 
and  modern  deeds  show  that  this  vein  was  called  a  zinc  ore, 
and  not  a  franklinite  ore,  but  all  the  previous  charters  obtain- 
ed from  the  legislature  look  the  same  way.  All  these  char- 
ters, and  there  were  several  of  them,  up  to  1853,  recognize 
this  vein  as  a  zinc  ore,  and  it  was  not  until  the  Sussex  Com- 
pany had  conveyed  to  the  Zinc  Company,  for  the  large  con- 
sideration we  have  named,  all  their  zinc  property,  that  these 
ingenious  gentlemen,  who  got  up  all  these  recent  charters, 
bethought  themselves  that  by  playing  upon  this  word  frank- 
linite, by  substituting  for  the  name  which  the  vein  had  gone 
by  when  spoken  of  as  a  subject  of  bargain  and  sale,  the  name 
by  what  men  of  science  had  originally  designated  this  species 
of  this  mineral  frauklinite,  they  could  start  through  the  air 
all  these  beautiful  and  variegated  bubbles,  the  success  of  their 
ascent  being  in  proportion  to  their  nothingness. 

What  right  have  we,  then,  when  we  find  that  in  all 
the  ancient  and  modern  deeds,  in  all  the  old  charters, 
tli is  vein  is  conveyed  by  the  name  of  zinc,  to  say  that 
in  this  deed  of  1852  it  was  not  also  conveyed  to  the 
Zinc  Company  under  the  same  name?  But  these  by  no 
means  exhaust  the  evidence  that  it  was  the  intent  of  the 
parties  to' convey,  by  this  deed  of  1852,  to  the  Zinc  Company 
this  vein  of  ores  under  the  name  of  zinc.  All  parties  con- 
nected with  these  transactions,  the  complainants  as  well  as 
the  defendants,  the  vendors  as  well  as  the  purchasers,  the 
mortgagees  as  well  as. the  mortgagors  and  encumbrancers, 
in  all  the  deeds  they  have  made,  in  all  the  agreements  they 
have  entered  into,  in  all  the  sales  they  have  made,  in  every 
bushel  of  ore  they  have  dug,  in  every  pound  of  zinc  they 
have  extracted,  in  every  certifirate  of  stock  they  have  issued, 
in  all  their  acts  of  every  description  they  have  done  from 
the  granting  of  the  charter  of  1848,  have  always  dealt  with 
and  treated  this  vein  as -a  mass  of  zinc  ore  in  situ.  The 
Sussex  Company  was  chartered  to  manufacture  zinc,  not  iron 
— its  chartered  name  was  u  Zinc  Company — it  sought  to  buy, 


NOVEMBER  TERM,  1862.  451 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

by  the  deed  of  1848,  a  mass  of  zinc  ore  in  situ  for  its  char- 
tered purposes.  Under  the  deed,  they  took  immediate  pos- 
session of  the  vein  with  the  full  knowledge  and  consent  of 
the  vendor,  and  commenced  to  extract  the  ore  as  a  zinc  ore, 
and  continued  so  to  do  until  they  discovered  that  the  red 
oxide  of  zinc  on  Stirling-hill  could  be,  in  the  then  condition 
of  the  manufacture,  somewhat  more  economically  worked. 
They  issued  over  $300,000  of  stock,  under  the  representation 
that  they  owned  this  vein  as  a  mass  of  zinc  ore  in  situ.  Let 
us  particularize  some  of  these  acts.  Thus,  on  the  agreement 
of  4th  September,  1851,  it  was  agreed  between  the  Sussex 
Company  and  the  Zinc  Company  that  they  would  both  apply 
to  the  legislature  to  obtain  an  act  authorizing  the  Sussex 
Company  to  transfer  all  their  property  to  the  Zinc  Company  ; 
and  in  pursuance  of  that  agreement,  both  parties  did  so  apply, 
and  represented  to  the  legislature  that  the  Sussex  Company, 
the  OAvner  of  certain  zinc  mines  in  Sussex,  and  it  is  so  re- 
cited in  the  preamble  to  the  act.  Yet  the  only  property  the 
Sussex  Company  owned  was  what  they  bought  from  Fowler 
in  the  deed  of  1848,  the  only  zinc  on  the  premises  was  this 
vein,  as  all  parties  perfectly  well  knew.  In  this  application 
to  the  legislature,  upon  which  that  act  was  founded,  and 
which  act  is  the  foundation  of  all  proceedings  since,  this  very 
Franklinite  Company  must  have  represented  to  the  legisla- 
ture that  this  vein  was  a  zinc,  and  not  a  franklinite  vein,  and 
procured  the  passage  of  the  act  upon  that  very  representation. 
Again,  in  the  answer  of  the  Franklinite  Company,  they  say 
that  the  intention  of  this  deed  of  1852  was  to  enable  the 
Zinc  Company  "to  develop  the  metals  of  zinc  ores."  Now 
how  could  that  be  the  object,  unless  it  was  the  intention,  by 
the  deed  of  1852,  to  convey  this  vein,  for  that  was  all  and 
the  only  zinc  property  they  owned.  Again,  the  Franklinite 
Company  say,  in  their  answer,  that  after  said  deed  of  1852, 
they  bought  of  Fowler  the  franklinite  ores,  or  a  portion  of 
Mine-hill,  to  develop  the  metals  "of  the  franklinite  ore;  so 
that,  if  we  can  believe  their  own  answer,  they  must  have  in- 
tended to  pass  this  vein  under  the  deed  of  1852  under  the 


452       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  t.  The  Boston  Franklinite  Co. 

name  of  zinc,  thus  could  not  have  intended  to  retain  this 
vein  under  the  exception  of  franklinite,  for  they  expressly 
state,  in  their  answer,  that  they  afterwards  bought  that 
from  Fowler,  and  their  answer,  so  far  as  it  states  otherwise, 
contradicts  itself. 

But  again :  if  there  is  anything  that  stands  out  in  bold 
relief  in  this  cause,  it  is  that  it  was  the  intention  of  the  deed 
of  1852  to  convey  to  the  Zinc  Company  all  the  property  of  the 
Sussex  Company.  This  is  proved  by  the  agreement  of  1851, 
by  the  act  of  the  legislature  of  1852,  by  the  evidence  of  all 
the  witnesses  on  both  sides,  by  the  actual  transfer  of  all  the 
stock  of  the  Sussex  Company,  both  that  held  by  individuals 
and  that  by  the  corporation,  and  by  the  universal  admission 
at  this  day,  that  every  share  of  that  stock  is  now  rightly 
held  by  the  Zinc  Company.  If  this  be  so,  it  could  not  be 
otherwise  than  that  the  deed  of  1852  passed,  and  was  in- 
tended to  pass  this  vein  under  the  name  of  zinc,  the  only 
possible  escape  for  the  Franklinite  Company  is  to  say  that 
they  themselves  got  no  title  for  the  vein  by  the  deed  of 
1848  from  Fowler. 

But  we  have  already  shown  that  this  vein  did  pass  to  them 
under  that  deed.  Thus  we  might  go  on,  if  time  permitted, 
that  always,  in  every  possible  way  and  from  the  parties  to  the 
deed  of  1852,  acted,  spoke,  and  treated  this  vein  as  passing 
by  this  said  deed  under  the  name  of  zinc  ore.  But  it  is  said, 
in  behalf  of  the  Franklinite  Company,  that  the  deed  of  1852 
differs  from  the  deed  of  1848  in  this,  that  the  dec-d  of  1848 
conveys  "all  the  zinc  and  other  ores,  except  franklinite  ore, 
when  it  exists  separate  from  the  zinc,"  and  the  deed  of  1852 
leaves  out  the  words  "  where  it  exists  separate  from  the  zinc;" 
and  it  is  therein  argued  that  the  deed  of  1848  conveys  the 
vein  under  the  words  other  ores,  and  the  deed  of  1852  ex- 
cepts  it  under  the  name  of  franklinite.  This  should  be  very 
manifest  before  the  court  should  so  hold ;  for  if  that  be  so,  as 
this  vein  was  all  the  property  the  Sussex  Company  owned, 
the  deed  of  1852  conveyed  nothing,  and  both  parties  must 
have  known  it.  The  construction  of  the  deed  should  be  most 


NOVEMBER  TERM,  1862.  453 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

strongly  against  the  grantor.  And  we  have  shown  that  the 
intent  not  to  convey  this  vein  could  not  consist  with  the 
avowed  intent  of  the  deed  of  1852  to  convey  all  the  property 
of  the  Sussex  Company. 

But  independently  of  all  the  considerations  I  have  named, 
let  us  see  what  this  suggestion  amounts  to.  The  Franklinite 
Company  must  satisfy  us,  first,  that  when  the  deed  of  1852 
was  executed,  that  the  parties  thereto  understood  that  this . 
vein  was  not  a  zinc  ore,  but  a  franklinite  ore,  and  intended 
to  except  it  under  the  latter  name.  But  this  they  are  es- 
topped from  doing  by  the  avowed  object  of  the  deed  and  the 
proof  of  all  the  witnesses  that  it  was  the  intent  to  convey  all 
their  property. 

But  we  are  asked:  if  the  change  in  the  deed  of  1852  had 
not  the  object  to  reserve  the  vein  under  the  name  of  frank- 
linite, what  was  its  object.  We  answer,  in  the  first  place, 
that  is  not  the  business  of  the  Zinc  Company ;  they  are  gran- 
tees, and  it  is  for  the  other  side  to  manifest  their  exception. 
But  if  it  was  the  duty  of  the  Zinc  Company,  it  is  entirely  ex- 
plained by  the  evidence  of  the  main  witness  of  the  Frank- 
linite Company,  Major  Farrington.  This  witness  says  all 
things  went  on  according  to  the  agreement  of  1851  :  the  act 

o  o  o  j 

was  procured,  the  stock  all  passed  over,  the  deed  drawn  to  con- 
vey all  the  property  to  the  Zinc  Company ;  and  he  and  all  the 
other  witnesses  expressly  swear  that  the  agreement  of  1851 
was  carried  out.  He  then  explains  how  this  alteration  in  the 
language  of  the  description  of  the  deed  in  1852  happened. 
He  and  all  the  witnesses  say  it  was  not  to  convey  less  than 
the  whole  property,  but  he  states  here  how  it  happened.  He 
says  the  deed  was  first  drawn  in  the  precise  language  of  the 
deed  of  1848.  Both  boards  of  directors  met,  all  parties 
were  satisfied  with  it,  and  they  were  about  to  execute  it 
when  he  suggested  a  scientific  doubt.  Franklinite  is  a  mineral 

OO 

which  is  composed  of  zinc  and  iron  in  chemical  combination, 
and  Farrington  suggested  that,  as  franklinite,  in  rerum  na- 
tura,  could  not  exist  chemically  separate  from  zinc,  that 
therefore  the  phrase  in  the  deed  of  1848,  "except  franklinite 


454       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  t>.  The  Boston  Franklinite  Co. 

where  it  exists  separate  from  zinc,"  would  embrace  frunklinite 
mechanically  separate  from  zinc;  and  the  deed  was  altered 
not  to  prevent  the  passing  of  all  the  property  of  the  Sussex 
Company,  but  to  prevent  its  being  construed  to  pass  frank- 
linite  when  not  mechanically  mixed  with  zinc  and  when  y.'mc 
was  only  present  as  a  chemical  constituent  of  franklinite. 
The  deed  was  altered  with  that  view,  and  out  of  this  absurd 
scientific  doubt  has  sprung  this  controversy.  The  Zinc  Com- 
pany yielded  to  the  major's  scientific  doubt,  and  that  clause 
was  stricken  out.  But  there  was  another  clause  inscribed  in 
the  deed  much  more  significant  than  the  clause  stricken  out. 
Major  Farrington  tells  us  that  the  deed  of  1852,  first  drawn, 
was  a  verbatim  'copy  of  that  of  1848,  and  a  new  deed  was 
drawn,  which  was  finally  executed,  and  is  the  deed  of  1852 
before  us.  Neither  the  deed  of  1848  or  any  of  the  previous 
deeds  contained  any  such  description  in  it  as  the  one  in  this 
deed  of  1852,  conveying  "all  the  right,  title,  and  estate  of 
the  Sussex  Company  in  the  premises  described."  Now,  in 
the  second  deed,  as  drawn,  Major  Farrington  has  told  us  why 
the  words  "  separate  from  the  zinc  "  are  stricken  out,  but  he 
lias  not  told  us  why  the  words  "all  the  right,  title,  and  es- 
tate," <£c.,  were  put  in.  The  reason  is  perfectly  manifest 
from  the  case.  The  words  were  stricken  out  to  prevent  the 
consequence,  as  suggested  by  Farrington,  of  conveying  frank- 
linite when  separated  mechanically  from  zinc,  and  the  words 
"all  the  estate,  right,"  etc.,  inserted  to  prevent  any  inference 
from  the  striking  out  the  words  "separate  from  the  zinc," 
that  the  parties  intended  to  convey  less  than  their  whole 
property.  To  the  question,  therefore,  why  the  first  clause 
was  stricken  out  of  the  deed  of  1852,  we  answer  by  asking 
why  the  second  clause  was  put  in.  Again,  what  possible  in- 
ference can  be  drawn  from  the  fact,  that  all  the  stock  of  the 
Sussex  Company  was  conveyed  to  the  Zinc  Company,  and 
that  it  is  to  this  day  admitted  by  all  parties  so  rightly  held, 
than  that  this  property  was  intended  to  be  conveyed  by  this 
deal  of  1852  by  the  name  of  zinc.  But  it  is  urged  that  the 
evidence  shows  that,  at  the  date  of  the  deeds,  and  as  late  as 


NOVEMBER  TERM,  1862.  455 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklin! te  Co. 

1853,  the  mass  or  veins  of  ore  in  Mine-hill  were  regarded 
and  known  as  frankliuite;  that  the  ore  was  so  classified  and 
arranged  in  mineral  cabinets  and  exhibitions;  that  it  was 
described  in  scientific  treatises,  in  geological  reports,  and  was 
so  called  by  the  proprietors  of  the  mines  and  by  the  miners 
themselves.  But  what  do  all  these  amount  to  if  it  appears 
by  the  overwhelming  weight  of  other  considerations,  some 
of  which  we  have  indicated,  that  the  parties  to  the  deed,  at 
the  very  time  of  execution,  intended  to  convey  the  vein  in 
question  by  the  name  of  zinc? 

But  further  :  when  a  mineralogist  was  arranging  his  cabi- 
net, if  he  came  across  a  specimen  of  franklinite  from  this 
vein,  he  would  of  course  classify  and  arrange  it  as  franklin- 
ite, and  not  as  something  else,  and  when  he  came  across  a 
specimen  of  that  portion  of  the  vein  which  was  zinc  ore, 
would  he  not  also  arrange  and  classify  that  as  zinc  ore ;  and 
would  either  have  the  slightest  tendency  to  prove  what  the 
owners  of  the  whole  vein  would  call  it  when  they  were  ap- 
plied to  to  sell  it  by  a  company  chartered  for  the  sole  purpose 
of  manufacturing  zinc  from  the  ore?  So  as  to  its  being 
described  as  frankliuite  ore  in  scientific  treatises  and  geological 
reports,  when  treating  of  franklinite,  they  would  treat  this 
vein  as  a  frankliuite  vein,  and  when  treating  of  zinc,  they 
would  treat  it  as  a  zinc  vein,  and  no  inference  from  either 
could  be  justly  drawn  as  to  what  these  parties  in  these  deeds 
meant  to  pass  by  the  name  of  zinc. 

But  it  is  further  said,  that  at  the  dates  of  these  deeds,  and 
up  to  1853,  this  vein  was  called  franklinite  by  the  proprie- 
tors of  the  mines  and  the  miners  themselves.  It  is  very 
true  that  since  1853,  when  this  controversy  was  first  stirred, 
and  when  the  Frauklinite  Company  first  conceived  the  plea- 
Bant  financial  operations  which  might  be  made  by  a  play  upon 
this  word  franklinite,  the  directors  and  agents  of  the  Frank- 
linite Company  have  made  it  a  matter  of  business  to  call  this 
vein  franklinite;  but  I  can  find  no  evidence  at  all  satisfactory 
that  before  that  time  the  vein,  as  a  mass,  was  called  frauklm- 
ite  by  anybody. 


45G       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co..r.  The  Boston  Franklinite  Co. 

As  a  specimen  of  Avhat  reliance  can  be  placed  upon  this 
kind  of  testimony,  let  us  take  the  evidence  of  Oakes  Ames, 
perhaps  the  most  candid  of  all  the  witnesses  of  the  Frank- 
linite Company,  and  the  one  most  likely  to  know.  He  says 
that  he  first  became  acquainted  with  Mine-hill  in  1826  ;  that 
the  bed  of  ore  was  then  called  franklinite.  They  formed  a 
company  about  that  time,  called  the  Franklinite  Manufac- 
turing Company  I  think,  leaving  us  to  infer  that,  so  early 
as  1826,  this  vein  was  so  well  known  as  franklinite  that  a 
charter  was  created  for  the  express  purpose  of  manufacturing 
the  franklinite  in  it.  Yet  the  trutli  is,  that  the  charter  he 
must  have  referred  to,  instead  of  being  called  the  Frank- 
linite Manufacturing  Company,  was  called  in  its  charter  the 
Frank/m  Manufacturing  Company,  and  only  so  called  be- 
cause it  was  located  near  the  Franklin  furnace,  and  its  ob- 
ject, as  declared  in  its  charter,  was  to  manufacture  not  frank- 
linite but  zinc.  So  that  at  that  time  this  vein  must  have 
been  known  as  zinc  ore,  even  according  to  the  evidence  of 
Mr.  Ames.  But  if  this  vein  was  called  a  franklinite  ore, 
and  not  zinc,  when  this  deed  of  1852  was  made,  when  did  it 
begin  to  be  called  so?  It  certainly  could  not  have  been 
prior  to  1821,  because  before  that  time  the  word  frankliuite 
had  not  yet  been  invented.  Doct.  Fowler  was  a  learned 
mineralogist,  and  finding  in  this  vein  a  substance  different 
from  any  other  in  his  cabinet,  sent  specimens  to  his  corres- 
pondents in  Europe  and  America,  among  others  Berthier,  a 
chemist  in  Paris.  He,  in  1821,  resolved  it  into  its  elements, 
and  discovered  that  it  was  a  new  mineral  species,  and  chris- 
tened it  by  the  name  of  franklinite,  because  it  had  first  been 
found  at  Franklin  furnace,  in  Sussex  county,  New  Jersey. 
Now  this  vein  had  been  known  for  sixty  years  before  that, 
and  known  as  yielding  a  very  large  per  cent,  of  metallic  zinc, 
and  zinc  had  been  known  as  valuable  in  commerce  from  very 
early  times.  The  vein  had  been  worked  for  its  zinc  for  sixty 
years.  It  is  apparent,  therefore,  that  long  before  1821  this 
vein  must  have  had  a  name,  and  that  name  not  franklinite, 
but  zinc.  It  is  altogether  likely,  that  after  it  was  thus  dis- 


NOVEMBER  TERM,  1862.  457 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

covered,  that  this  was  a  new  mineral  species,  and  that  thig 
was  the  only  place  in  the  world  where  it  had  ever  been  found. 
That  both  Dock  Fowler  and  this  learned  correspondent  talked 
a  good  deal  about  it,  and  that  the  old  acquaintance,  zinc,  was 
for  some  time,  PS  is  customary  in  such  cases,  overslaughed 
in  the  halls  of  the  learned  by  this  new-born  babe  of  science. 
But  in  their  learned  descriptions  they  had  no  idea  or  object 
to  discuss  or  settle  the  question  whether,  when  Doct.  Fowler 
came  to  sell  this  vein  to  purchasers,  he  shall  change  the 
name  of  the  mass  of  ore  in  situ,  and  call  it,  for  commercial 
purposes,  either  a  zinc  ore  or  a  franklinite  vein.  Though 
after  this  discovery,  in  1821,  this  franklinite  was  to  some  ex- 
tent a  scientific  toy,  we  can  hardly  suppose  that  Doct.  Fowler 
or  any  other  owner  would,  when  he  came  to  seek  a  purchaser, 
change  the  name  of  this  vein  from  zinc  to  franklinite.  Zinc 

O 

had  been  known  as  valuable  in  commerce  as  long  as  brass 
had  been  manufactured.  But  this  franklinite  was  the  most 
useless  iron  ore  that  had  been  discovered.  There  it  had  laid 
for  an  hundred  years  within  300  yards  of  an  iron  furnace, 
tortured  in  every  shape  that  skill  and  avarice  could  put 
upon  it  to  declare  its  hoped-for  usefulness,  and  the  only 
thing  ever  successfully  generated  between  it  and  the  furnace 
was  a  salamander.  The  Franklinite  Company  now  in  this 
case  ingeniously  account  for  this  by  swearing  that  they  suspect 
that  its  good  qualities  are  not  yet  fully  developed.  The  evi- 
dence fully  shows  that  neither  Doct.  Fowler  or  any  other 
owner,  when  he  wished  to  sell  this  vein,  ever  libelled  his  own 
property  by  calling  it  franklinite.  It  was  never,  in  any  matter 
of  sale,  pretended  to  be  called  franklinite  until  this  Franklm- 
ite  Company,  in  1853,  having  sold  it  as  a  zinc  vein,  in  order 
to  give  this  Zinc  Company,  as  their  evidence  declares,  the 
monopoly  of  zinc  ores  in  Sussex,  sought,  by  calling  it  a  frank- 
linite ore,  to  get  at  the  zinc,  and  put  the  profits  arising  from 
the  zinc  in  their  own  pockets.  Can  there  be  any  better  evi- 
dence that  all  parties  consider  and  treat  this  vein  as  a  ziac  ore 
than  the  avowed  and  proved  acts  of  the  Fraukliuite  Company 
in  this  very  case  ? 


458   COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

They  pretend  that  this  vein  is»  franklinite,  and  not  zinc; 
that  their  sole  object  is  not  to  manufacture  zinc,  but  to  man- 
ufacture iron  from  the  frankliiiite,  and  yet  the  first  thing  they 
do  is  to  erect  not  furnaces  to  manufacture  iron,  but  ovens  to 
extract  the  zinc.  They  manufacture  nothing  but  zinc,  put  it 
in  the  market  to  compete  with  the  Zinc  Company,  when  their 
avowed  object  in  tliia  deed  of  1852  was  to  give  the  Zinc 
Company  a  monopoly  of  the  zinc  manufacturing,  and  then 
treat  all  the  ore  but  the  zinc  ore  as  a  useless  dross.  They 
profess  to  want  only  the  iron,  but  they  use  only  the  zinc.  The 
evidence,  to  my  mind,  that  the  deed  of  1852  was  intended  by 
the  parties  to  pass  this  vein  by  the  name  of  zinc,  is  as  strong 
as  if  the  parties  had  gone  upon  the  mass  of  ore  in  situ,  and 
had  made  livery  of  seizin  thereof  with  all  the  forms  and 
solemnities  of  the  common  law. 

As  it  appears,  from  what  we  have  said  in  discussing  the 
effect  of  this  deed  of  1848,  that  this  vein  of  ores  passed  by  it 
to  the  Sussex  Company,  it  is  unnecessary  to  say  anything  fur- 
ther about  the  claim  of  title  by  the  Franklinite  Company 
under  the  deal  from  Fowler  to  the  Curtises  under  the  deed 
of  1850  to  them,  as  that  only  conveys  what  did  not  pass  by 
the  deed  of  1848.  I  deem  it  but  justice  to  say  in  closing,  that 
so  far  as  regards  the  Boston  Company  and  Oakes  Ames,  I  see 
nothing  inconsistent  with  the  strictest  integrity  and  good  faith. 
I  am  of  opinion  that,  by  the  deed  of  1852,  it  was  the  inten- 
tion of  the  parties  thereto  to  pass  over  the  property  in  dispute 
under  the  name  of  zinc  ore;  that  the  property  in  dispute  be- 
longs to  the  Zinc  Company,  both  in  law  and  in  equity;  that 
the  injunction  against  the  Zinc  Company  should  be  dissolved, 
and  the  injunction  against  the  other  parties  should  be  made 
perpetual  with  costs. 

BROWN,  J.  The  contest  in  these  cases  is  for  the  ores  of 
zinc  and  iron  in  a  tract  of  land  called  Mine-hill,  in  the 
county  of  Sussex.  The  questions  are,  what  title  to  ores 
there  found  the  Zinc  Company  acquired  by  the  deed  made  to 
them,  dated  March  8th,  1852,  by  the  Sussex  Zinc  and  Cop- 


NOVEMBER  TERM,  1862.  459 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

per  Mining  and  Manufacturing  Company,  and  what  title  to 
such  ores  the  Boston  Franklinite  Company  have,  as  succes- 
sors to  the  Sussex  Company,  through  Oakes  Ames  and  the 
New  Jersey  Franklinite  Company,  by  virtue  of  the  excep- 
tion in  the  same  deed.  By  it  the  Sussex  Company  grants 
and  conveys  to  the  Zinc  Company  "all  the  zinc  and  other 
ores,  except  franklinite  and  iron  ores,  found  or  to  be  found 
in  or  upon  the  following  described  premises,  that  is  to  say, 
that  certain -farm,  piece,  or  parcel*  of  land,  bounded  as  fol- 
lows, and  consisting  of  several  contiguous  tracts.  First,  the 
Mine-hill  farm."  After  describing  this  and  other  tracts  by 
metes  and  bounds,  the  deed  proceeds  to  give  license  and  au- 
thority for  several  purposes,  among  others,  to  open  shafts, 
levels,  and  drains,  to  mine  all  sorts  of  mines  and  minerals, 
veins  of  zinc,  copper,  lead,  silver,  gold,  and  other  ores  and 
metals,  except  the  franklinite  and  iron  ores,  as  therein  pro- 
vided, with  free  ingress  in  and  upon,  and  egress  from  the 
said  premises  for  the  purposes  aforesaid ;  and  together  with 
all  and  singular  the  tenements  and  appurtenances,  &c.,  and 
also,  all  the  estate,  right,  title,  interest,  property,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said 
parties  of  the  first  part,  of,  in,  and  to  the  above  described 
premises,  and  every  part  and  parcel  thereof,  with  the  appur- 
tenances. 

This  deed  conveys  in  terms  all  the  zinc  ore  found  or  to  be 
found  upon  the  premises  described.  The  words  are,  "  all  the 
zinc  and  other  ores  except  the  franklinite  and  iron  ores," 
and  to  these  words  there  is  but  one  grammatical  reading. 
It  is  all  the  zinc  ores  and  all  other  ores  except  franklinite 
and  iron  ores.  The  exception  is  from  the  ores  named  gene- 
rally, and  not  from  the  zinc  ores,  unless  franklinite  is  a  zinc 
ore.  The  words  cannot  be  held  to  mean  all  the  zinc  ores 
except  iron  ores,  nor  all  the  zinc  ores  except  franklinite,  un- 
less franklinite  be  a  zinc  ore.  If  this  interpretation  seems 
at  all  obscure,  it  is  because  the  words  of  the  description  re- 
late to  kinds  of  property  not  familiar  to  us.  If  the  same 
form  of  description  and  exception  be  applied  to  tilings  in 


460       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Frankliiiite  Co. 

common  use  the  doubt  will  be  removed,  as  if  a  man  should 
sell  all  the  white-oak  and  other  timber  on  his  farm  except 
the  chestnut,  chestnut  is  an  exception  from  the  other  timber, 
and  not  from  the  white-oak.  If  the  sale  was  of  all  the 
white-oak  timber  except  the  chestnut,  the  clause  would  not 
be  good  English,  nor  the  exception  good  in  law;  for  the  ex- 
ception would  not  be  from  the  thing  granted  but  from  some 
other  thing,  contrary  to  one  of  Touchstone's  quaint  rules. 
The  reading  of  this  cxcepti6n  thus — all  the  zinc. ores  except 
the  iron  ores — would  be  just  as  bad  as  all  the  white-oak  ex- 
cept the  chestnut.  Xor  would  all  the  zinc  ore  except  the 
franklinite  be  any  better,  for  it  appears  in  all  the  pleadings 
and  in  all  the  proofs,  and  in  the  arguments  of  counsel  here, 
that  franklinite  is  considered  a  mineral  species  or  an  iron 
ore.  It  therefore  cannot  be  excepted  out  of  zinc  ore. 

If,  then,  the  exception  applies  only  to  other  ores  the  clause 
should  be  read,  so  far  as  respects  zinc,  all  the  zinc  ores  found 
or  to  be  found  on  the  premises  described.  This  would  give 
the  Zinc  Company  all  the  zinc  ores,  with  the  right  to  mine 
them,  although  it  might  be  necessary  to  break  down  the 
franklinite  and  iron  ores  to  get  them.  The  above  construc- 
tion seems  verbally  accurate,  and  should  be  the  legal  con- 
struction, unless  there  be  some  other  of  which  the  words  are 
capable  called  for  by  the  intent  of  the  parties.  I  know  of 
none  such.  The  deed,  with  this  construction,  gives  the  zinc 
ore  not  in  mass  with  such  admixtures  as  were  not  conveyed, 
but  in  species.  The  language  of  the  description  of  this,  deed, 
and  that  of  Fowler,  from  whom  the  Sussex  Company  got  its 
title,  is  not  apt  to  a  purpose  of  conveying  masses  of  mixed 
ore  in  silu,  the  preponderant  ore  characterizing  the,  mass.  A 
deed  with  such  intent  would  necessarily  describe  such  masses 
with  some  definiteness  as  to  location  or  boundary,  so  far  as 
that  can  be  done  in  relation  to  this  kind  of  property.  The 
title  to  an  ascertained  vein  of  ore  may  be  given,  and  the 
estate  is  bounded  by  the  walls  of  the  vein,  wheresoever  they 
may  lead.  So  as  to  veins  or  lodes  undiscovered  the  •  same 
rule  would  apply  after  discovery,  the  prevalent  ore  giving 


NOVEMBER  TERM,  18G2.  461 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franlclinile  Co. 

character  to  the  mass.  But  the  words  in  these  deeds  define 
nothing.  The  deed  from  Fowler  to  the  Sussex  Company,  for 
example,  conveys  "all  the  zinc,  copper,  lead,  silver,  and  gold 
ores,  and  also  all  metals  or  ores  containing  metals,"  &c.,  and 
this  deed  "all  the  zinc  and  other  ores." 

The  descriptions  are  not  of  opened  mines  or  ascertained  veins 
or  veins  not  yet  discovered,  but  are  such  as  are  universally  used 
in  deeds  to  exploring  and  mining  adventurers.  The  grantees 
of  such  deeds  incur  the  expense  of  sinking  shafts,  opening 
levels  and  drains,  and  removing  masses  of  no  value,  in  the 
full  confidence  that,  whatever  they  may  find  within  the  de- 
scription of  their  deeds  worth  taking  away,  no  matter  ho\v 
situated  or  mixed,  they  will  have  the  right  to  take  away. 
The  parties  contract  in  general  and  sweeping  words  with 
reference,  in  great  measure,  to  the  unseen  and  unknown,  and 
thus  create  questions  inter  se  difficult  to  adjust  when  the 
estate  or  right  is  opened  to  sight  and  knowledge.  Adverse 
rights  under  ground,  without  definite  description,  must  of 
course  be  difficult  to  reconcile;  but  this  cannot  control  the 
construction  of  deeds  creating  these  rights.  The  right  to 
zinc  ore,  given  by  this  deed  to  the  Zinc  Company,  is  the 
dominant  right;  for  the  grant  must  be  taken  most  strongly 
contra  profcrcntem.  If  zinc  ore  be  found  in  such  combina- 
tion with  other  masses  not  granted  as  to  be  inseparable,  these 
masses  must  pass  as  an  incident  to  the  grant.  A  good  ex- 
ception can  only  be  made  of  such  thing  as  may  be  separated 
from  the  granted  thing.  4  Cruise's  Diy.  288. 

But  if  this  result  be  doubted,  or  considered  strictissiml 
juris,  greater  certainty  will  be  found  in  further  considering 
the  words  «f  this  deed.  The  deed  conveys,  it  will  be  re- 
membered, all  the  zinc  ore  found  or  to  be  found  upon  the 
following  described  premises,  that  is  Mine-hill  and  the  other 
tracts  of  land,  with  the  right  to  mine  there,  and  free  ingress 
into  and  upon  and  egress  from  the  said  premises,  and  also  all 
the  estate,  property,  title,  interest,  claim,  and  demand  of  the 
said  parties  of  the  first  part  of,  in,  and  to  the  above  described 
premises. 

YOL.  ii.  2  P 


462       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinite  Co. 

"What  is  the  meaning  here  of  the  words  "above  described 
premises?"  It  is  insisted  that  they  mean  only  the  ores 
granted.  Suppose  they  do,  then  this  part  of  the  deed  \vill 
read  "all  the  estate,  title,  and  interest  of  the  said  parties  of 
the  first  part  of,  in,  and  to  all  the  zinc  and  other  ores,  except 
franklinitc  and  iron  ores,  found  or  to  be  found  on  the  above 
described  lands."  Supposing  what  is  understood,  this  pas- 
sage, so  interpreted,  will  read  thus :  all  the  estate,  title,  and 
interest  of  the  grantors  of,  in,  and  to  all  the  zinc  ores  and 
all  other  ores  except  franklinite  and  iron  ores.  There  being 
no  qualification  or  exception  to  the  grant  of  zinc  ores,  the 
entire  title  of  the  Sussex  Company  to  zinc  ore  passes.  This 
title  embraced  all  the  zinc  ores  undisturbed  by  the  franklinite 
exception,  for  that  only  existed  when  franklinite  was  found 
separate  from  zinc. 

But,  in  my  judgment,  the  words  "  above  described  premi- 
ses" do  not  mean  the  ores  granted.  "When  this  word 
"premises'"  is  used  in  the  habendum  it  has  a  fixed  meaning. 
The  office  of  that  part  of  a  deed  is  to  fix  with  certainty  the 
estate  granted,  and  in  that  connection  the  word  "premises" 
docs  mean  the  thing  granted,  as  described  in  what  precedes 
the  habendum.  In  this  deed  the  word  premises,  in  the 
habendum,  means  ali  the  ores  granted,  together  with  all  the 
interest  of  the  grantors  in  the  lands  described. 

Bui.  the  inquiry  is  not  now  as  to  the  meaning  of  the  word 
in  the  habendum,  but  in  the  description  of  the  thing  upon 
which  the  habendum  is  to  have  effect.  The  word  premises 
sometimes  means  any  statements  which  precede  the  use  of 
the  word.  Sometimes  it  means  lauds,  sometimes  the  thing 
granted. 

In  the  premises  of  a  deed  it  cannot  mean  the  thing  granted, 
for  that  is  not  ascertained  until  the  description  is  complete. 
It  is  twice  used  in  this  same  description  to  mean  lands — the 
ore  in  the  lands  and  the  right  to  enter  upon  the  lands  are 
described  as  in  or  upon  the  premises,  that  is  to  say  the  tract? 
of  -land  described  by  metes  and  bounds.  When  this  word  i? 
used  the  third  time  in  description,  and  the  right  of  tlm 
grantor  given  in  the  above  described  premises,  it  is  difficult 


NOVEMBER  TERM,  1862.  463 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Franklinhe  Co. 

to  conceive  how  it  can  mean  anything  else  than  in  its  previous 
connections.  The  following  described  premises  and  the  above 
described  premises  go  to  the  same  thing  with  great  exact- 
ness. The  word  is  held  to  its  meaning  of  lands  by  the  qual- 
ifying words  with  certainty.  Language  affords  no  greater. 
The  doubt  suggested  arises  not  from  the  words  in  their  con- 
nection, but  from  the  effect  of.  such  general  words  upon  the 
subject  matter  of  the  grant.  It  is  said  that  they  are  broad 
enough  to  convey  the  fee  of  the  lands,  and  so  they  are.  But 
they  will  convey  no  more  than  the  grantor's  title,  and  he 
should  know  whether  he  means  to  convey  that  or  not,  and 
insert  it  or  not  according  to  his  intent.  It  is  true  a  case 
may  be  put  in  which  such  use  of  the  word  will  seem  a 
strange  mistake — one,  by  the  way,  very  unlikely  to  be 
made.  As  if  a  man  owning  the  fee  of  lands  should  sell  all 
the  timber  on  the  premises,  together  with  all  his  estate  in 
and  right  to  the  premises.  If  the  land  were  of  large  value 
and  the  timber  of  small  value,  and  the  consideration  propor- 
tioned to  the  latter,  the  immediate  conclusion  of  the  mind 
would  be,  tin's  is  a  mistake,  and  but  little  proof  would  be  re- 
quired to  procure  a  reform  in  a  court  of  equity.  On  the 
other  hand,  a  case  may  be  put  in  which  it  would  appear  to 
be  in  exact  accord  with  the  intent  of  the  parties,  as  if  a 
man  .owning  certainly  a  third  part,  and  having  a  question- 
able title  to  an  additional  sixth  part  of  lands,  should  sell  the 
one  undivided  third  part  of  the  premises,  together  with  all 
his  interest  in  the  premises,  there  would  be  little  doubt  that 
he  meant  what  he  said. 

But  if  it  appeared  that  the  deed  was  given  in  execution 
of  a  contract  to  convey  all  his  estate  in  these  lands,  there 
could  be  no  doubt  at  all  of  his  meaning.  The  intent  being 
ascertained,  the  deed  must  be  so  construed,  and  both  the 
particular  and  general  description  have  effect.  This  rule  is 
stated,  in  4  Cruise's  Digest  257,  to  be  "  that  when  a  deed  first 
contains  special  words,  and  afterwards  concludes  in  general 
ones,  both  wrords,  as  well  general  as  special,  shall  stand,  f  )r 
otherwise  the  general  words  would  have  no  effect."  The  case 


464       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Frank  Unite  Co. 

of  Sumner  v.  Williams,  8  Mass.  176,  cited  by  the  counsel 
of  the  Boston  Company,  will  not  on  examination  be  found  to 
sustain  his  position.  The  action  was  brought  on  the  cove- 
nants of  a  deal  made  by  administrators.  The  question  was 
as  to  their  personal  liability.  The  meaning  of  the  word 
premises  was  argued  in  the  case,  and  Justice  Swig  wick  dis- 
cussed it  in  his  opinion.  The  other  judges  did  not  refer  to 
it  The  deed,  in  all  particulars,  was  different  from  that  now 
under  consideration.  The  administrators  had  license  to  sell 
the  lands  of  intestate  from  the  Court  of  Common  Pleas. 
They  describe  the  property  in  the  deed  as  the  equity  of  re- 
demption of  which  the  intestate  died  seized  in  the  premises, 
and  the  Juibendum  is  to  have  and  hold  the  same.  They 
covenant  that,  as  administrators,  they  arc  lawfully  seized  of 
the  premises ;  that  they  are  free  from  all  encumbrances  ex- 
cept the  mortgage  deed  and  dower  of  the  widow ;  and  they 
had  good  right  to  sell,  and  would  defend  the  same.  The 
que-tion  discussed  by  Justice  Sedgwick  was  whether  the 
covenants  extended  to  the  lands,  or  to  the  equity  of  redemp- 
tion only.  It  was  not  material,  and  was  not  decided.  I 
think,  however,  that  in  saying  the  word  same  in  the  haben- 
dum  meant  the  thing  granted,  and  that  the  covenants  ex- 
tended no  further,  he  was  clearly  right.  That  deed  admitted 
of  such  construction,  in  fact  required  it.  Such  was  the  in- 
tent of  the  parties,  appearing  in  every  part  of  the  deed. 

I  think  no  reference  to  extrinsic  circumstances  to  aid  in 
ascertaining  the  intent  of  the  parties  to  this  deed  is  neces- 
sary. But  if  a  doubt  does  exist  the  court  may  look  at  such 
evidence.  The  original  rule  is  clear  in  its  terms.  Latent 
ambiguities  arising  from  evidence  of  extrinsic  circumstances, 
when  the  instrument  came  to  be  applied  to  the  subject  of  it, 
could  1x3  removed  by  the  same  kind  of  evidence,  but  a  patent 
ambiguity  could  not  be  aided  in  this  way.  Construction  of 
the  words  was  the  only  remedy,  and  when  that  failed  the 
instrument  failed  to  have  effect.  This  rule  has  been  sub- 
jectwl  to  many  exceptions,  by  which  the  rule  itself  is  in  fact 
modified.  In  general,  the  court  may  look  at  the  circum- 


NOVEMBER  TERM,  1862.  465 

The  New  Jersey  Zinc  Co.  t>.  The  Boston  Franklinke  Co. 

stances  surrounding  the  transaction  at  the  time  of  it,  and 
construe  the  writing  in  view  of  them,  if  they  afford  any  light. 
This  of  course  does  not  extend  .to  the  alteration  of  the  instru- 
ment, but  only  to  settling  the  sense  of  the  words  when  they 
admit  of  two  or  more  meanings. 

Vice-Chancellor  Wigram,  in  his  treatise  on  extrinsic  evi- 
dence, page  59,  says,  "every  claimant  under  a  will  (and 
the  same  rules  apply  to  all  instruments)  has  a  right  to  re- 
quire that  a  court  of  construction,  in  the  execution  of  its 
office,  shall,  by  means  of  extrinsic  evidence,  place  itself  in  the 
situation  of  the  testator,  the  meaning  of  -\yhose  words  it  is 
called  upon  to  declare."  Ibid.  57-8. 

It  is  upon  the  principle  above  adverted  to,  namely,  that 
all  writings  tacitly  refer  to  the  existing  circumstances  under 
which  they  are  made,  that  courts  of  law  admit  evidence  of 
particular  usages  and  customs  in  aid  of  the  interpretations 
of  written  instruments,  whether  ancient  or  modern,  when- 
ever, from  the  nature  of  the  case,  a  knowledge  of  such 
usages  and  customs  is  necessary  to  a  right  understanding  of 
the  instrument.  The  law  is  not  so  unreasonable  as  to  deny 
to  the  reader  of  any  instrument  the  same  light  which  the 
writer  enjoyed.  2  Phil.  Ev.  277.  "For  the  purpose  of  ap- 
plying the  instrument  to  the  facts,  and  of  determining  what 
passes  by  it,  or  who  take  an  interest  under  it,  a  second  de- 
scription of  evidence  is  admissible,  viz.  every  material  fact 
that  will  enable  the  court  to  identify  the  person  or  thing 
mentioned  in  the  instrument,  and  place  the  court,  whose  pro- 
vince it  is  to  declare  the  meaning  of  the  words  of  the  in- 
strument as  near  as  may  be,  in  the  situation  of  the  parties 
to  it." 

In  the  case  of  Colpoys  v.  Colpoys,  1  Jacob's  Ch.  R.  464, 
the  master  of  rolls  says :  "  In  the  case  of  a  patent  ambiguity, 
that  is  one  appearing  on  the  face  of  the  instrument,  as  a 
general  rule,  a  reference  to  matter  dehors  the  instrument  is 
forbidden.  It  must,  if  possible,  be  removed  by  construction, 
and  not  by  averment.  But  in  many  cases  this  is  imprac- 
ticable. Where  the  terms  used  are  wholly  indefinite  and 


466       COURT  OF  ERRORS  AND  APPEALS. 

The  New  Jersey  Zinc  Co.  r.  The  Boston  Franklinite  Co. 

equivocal,  and  carry  on  the  face  of  them  no  certain  or  ex- 
plicit meaning,  and  the  instrument  furnishes  no  materials  by 
which  the  ambiguity  thus  arising  can  be  removed,  if  in  such 
cases  the  court  were  to  reject  the  only  mode  by  which  the 
meaning  could  be  ascertained,  viz.  the  resort  to  extrinsic  cir- 
cumstances, the  instrument  must  become  inoperative  and 
void.  As  a  minor  evil,  therefore,  common  sense  and  the  law 
of  England  (which  are  seldom  at  variance)  warrant  the  de- 
parture from  the  general  rule,  and  call  in  the  light  of  ex- 
trinsic evidence.  The  books  are  full  of  instances  sanctioned 
by  the  highest  authorities  both  in  law  and  equity.  When 
the  person  or  the  thing  is  designated  on  the  face  of  the  in- 
strument by  terms  imperfect  and  equivocal,  admitting  either 
of  no  meaning  at  all  by  themselves  or  of  a  variety  of  dif- 
ferent meanings  referring  tacitly  or  expressly  for  the  ascer- 
tainment and  completion  of  the  meaning  to  extrinsic  cir- 
cumstances, it  has  never  been  considered  an  objection  to  the 
reception  of  evidence  of  those  circumstances  that  the  am- 
biguity was  patent."  The  master  cites  Doe  ex  dem.  Jersey  v. 
Smith,  2  Brad.  &  Biny.  553,  in  support  of  his  view.  In  this 
case  Bay  ley,  J.,  says:  "The  evidence  here  is  not  to  produce 
a  construction  against  the  direct  and  natural  meaning  of  the 
words — not  to  control  a  provision  which  was  distinct  and 
accurately  described,  but  because  there  is  an  ambiguity  on 
the  face  of  the  instrument;  because  an  indefinite  expression 
is  used  capable  of  being  satisfied  in  more  ways  than  one,  and 
I  look  to  the  state  of  the  property  at  the  time,  to  the  estate 
and  interest  the  settler  had,  and  the  situation  in  which  she 
Btood  in  regard  to  the  property  she  was  settling,  to  see 
whether  that  estate  or  interest  or  situation  would  assist  us 
in  judging  what  was  her  meaning  by  that  indefinite  expres- 
sion." 

In  the  case  of  Bradley  v.  The  Washington  Steam  Packet 
Company,  13  Pelcm'  R.  80,  Justice  Barbour,  in  delivering 
the  opinion  of  the  court,  reviews  a  number  of  the  decisions 
on  this  subject,  and  sums  up  the  result  in  the  following 
words:  "The  cases  which  we  have  thus  collected  together, 


NOVEMBER  TERM,  1862.  467 

The  New  Jersey  Zinc  Co.  r.  The  Boston  Franklinite  Co. 

from  among  the  very  many  which  exist,  will  serve  to  show 
in  how  many  aspects  the  question  of  the  admissibility  of  ex- 
trinsic evidence  in  relation  to  written  contracts  has  been  pre- 
sented and  decided,  and  in  how  many  forms,  according  to  the 
various  circumstances  of  the  cases,  the  principle  which  we 
have  been  considering  has  been  applied.  Sometimes  it  has 
been  applied  to  deeds,  sometimes  to  wills,  and  sometimes  to 
mercantile  and  other  contracts.  In  some  cases  it  has  been 
resorted  to  to  ascertain  which  of  several  persons  was  in- 
tended, in  others,  which  of  several  estates.  In  some  to  as- 
certain the  identity  of  the  subject,  in  others  its  extent.  la 
some  to  ascertain  the  meaning  of  a  term,  where  it  had  ac- 
quired by  use  a  particular  meaning,  in  others  to  ascertain  in 
what  sense  it  was  used  when  it  admitted  of  several  mean- 
ings. But  in  all  the  purpose  was  the  same — to  ascertain  by 
this  medium  of  proof  the  intention  of  the  parties,  when 
without  the  aid  of  such  evidence  that  could  not  be  done  so 
as  to  give  a  just  interpretation  to  the  contract.  Without 
attempting  to  do  what  others  have  said  that  they  were  un- 
able to  accomplish,  that  is  to  reconcile  all  the  decisions  on 
the  subject,  we  think  that  we  may  lay  down  this  principle  as 
the  just  result,  that  in  giving  effect  to  a  written  contract,  by 
applying  it  to  its  proper  subject  matter,  extrinsic  evidence 
may  be  admitted  to  prove  the  circumstances  under  which  it 
was  made,  whenever  without  the  aid  of  such  evidence  such 
application  could  not  be  made  in  the  particular  case." 

The  difficulty  arises  here,  if  any,  in  applying  the  word 
premises  to  the  subject  of  the  contract.  According  to  the 
natural  construction  of  the  word  in  its  connection  it  means 
land,  and  so  construed  the  deed  conveys  all  the  title  of  the 
Sussex  Company  in  the  lands  to  the  Zinc  Company.  Is 
there  anything  in  the  surrounding  circumstances  to  show 
that  the  parties  meant  any  less?  The  Sussex  Company  had 
no  title  to  the  surface  of  the  land,  only  to  certain  ores.  By 
reference  to  the  deed  from  Fowler  to  this  company,  we  find 
that  he  conveyed  to  it  all  the  zinc  and  other  ores  there  found 
or  to  be  found,  except  franklinite,  wlien  it  exists  separate  from 


468       COURT  OF  ERRORS  AND  APPEALS.^ 

The  New  Jersey  Zinc  Co.  v.  The  Boston  Frnnklinite  Co. 

zinc.  To  this  exception  it  may  be  said,  that  it  amounts  to 
nothing,  for  franklinite  never  exists  separate  from  zinc  in 
chemical  combination.  The  meaning  no  doubt  was  to  except 
it  when  not  found  in  mechanical  combination  with  zinc. 
There  was  a  plausible  reason,  therefore,  for  changing  the 
language  of  the  exception,  and  it  was  changed  in  the  deed 
to  the  Zinc  Company.  TJiere  they  except  franklinite  with- 
out more.  The  difference  in  the  effect  of  these  exceptions  is 
unquestionable,  and  involves  all  that  is  in  dispute  in  this 
cause,  but  rt  is  not  obvious  at  first  reading.  The  Zinc  Com- 
pany certainly  would  not  readily  perceive  that  by  this  dif- 
ference they  would  lose  any  zinc  not  chemically  combined  in 
franklinite.  This  leaves  open  the  question,  whether  the  deed 
was  made  by  the  Sussex  Company  with  the  intent  of  reserv- 
ing part  of  the  ores  they  acquired  from  Fowler,  and  ac- 
cepted by  the  Zinc  Company  with  that  understanding.  The 
general  clause,  including  all  their  title,  answers  the  question 
exactly  if  premises  mean  lands,  and  this  answer  cannot  be 
put  aside  unless  a  good  reason  can  be  found  for  so  doing. 
The  reason  seems  to  be  the  other  way.  The  exception  in  the 
second  deed  is  relieved  of  the  obvious  infirmity  of  the  first, 
while  the  whole  description,  taking  the  general  clause  as  re- 
ferring to  the  lands,  conveys  the  same,  and  no  more  than  the 
same  rights. 

The  general  clause,  so  interpreted,  performs  its  office, 
which  is  to  guard  against  omission  or  inadequate  construc- 
tion. Jjurton  on  Real  Property  167,  found  in  the  law  li- 
brary. 

By  the  cases  above  cited,  we  are  allowed  to  look  further 
into  the  surrounding  circumstances.  One,  specially  included, 
is  the  relation  of  the  grantors  to  .the  property  or  subject  of 
the  contract.  At  the  time  of  the  delivery  of  the  deal  to  the 
Zinc  Company,  which  I  consider  to  have  been  after  its  ac- 
knowledgment, there  being  no  direct  proof,  the  Sussex  Com- 
pany in  equity  had  no  property.  They  had  contracted,  for 
valuable  consideration,  with  the  Zinc  Company  to  convey  to 
it  all  their  stock  and  property  of  every  kind,  and  had  re- 


NOVEMBER  TERM,  1802.  469 

Morris  and  Essex  Railroad  Co.  v.  Green. 

ceived  the  consideration.  When  they  delivered  the  deed 
theiefor,  in  equity  they  were  merely  trustees  executing  a 
trust — at  law,  they  were  performing  a  contract.  It  is  true 
that  the  contract  may  have  been  waived,  or  another  substitu- 
ted, but  there  is  no  sign  of  it  in  the  evidence ;  and  where  a 
deed  is  delivered,  which  by  its  usual  and  natural  construction 
performs  a  contract  between  the  parties,  the  clear  presumption 
is  that  it  was  so  intended. 

In  coming  to  the  conclusion  that  the  New  Jersey  Zinc  Com- 
pany, by  their  deed,  acquired  all  the  title  the  Sussex  Company 
had  from  Fowler,  and  that  the  decree  of  the  Chancellor  should 
be  reversed,  I  beg  leave  to  add,  that  I  have  the  highest  respect 
for  the  legal  opinions  of  the  Chancellor. 

If  in  the  discharge  of  my  duties  here  I  could  defer  to  the 
opinions  of  any  judge,  I  would  to  his;  but  my  convictions 
upon  the  points  on  which  I  rest  my  opinion  in  this  case  are 
strong,  and  I  cannot  yield  them  to  those  of  any  other  mind. 

The  decision  of  the  Chancellor  was  reversed  by  the  follow- 
ing vote: 

For  affirmance — Judges  WHELPLEY,  HAINES,  ELMER, 
COMBS,  SWAIN — 5. 

For  reversal — Judges  VREDENBURGH,  BROWN,  VAX  DYKE, 
OGDEN,  CORNELISON,  KENNEDY,  WOOD — 7. 

CITED  in  the  N.  J.  Zinc  Co.  v.  Franklin  Iron  Co.,  2  Stew.  423. 


THE  MORRIS  AND  ESSEX  RAILROAD  COMPANY,  appellants, 
and  THOMAS  GREEN,  respondent. 

The  complainant  was  the  owner  of  a  farm,  through  which  the  defendants, 
the  Morris  and  Essex  Railroad  Company,  in  the  construction  of  their 
work,  made  an  excavation.  Commissioners  were  called,  under  the  com- 
pany's charter,  to  assess  the  damages,  from  whose  award  the  complainant 
appealed.  Before  the  hearing  of  the  appeal,  H.  and  W.,  who  had  con- 
tracted with  the  company  to  procure  the  right  of  way  for  them,  and  to 
pay  the  expenses  of  it,  proposed  to  submit  the  matter  in  difference  to 


470       COURT  OF  ERRORS  AND  APPEALS. 


Morris  and  Essex  Railroad  Co.  ».  Green. 

arbitration,  which  was  done.  By  the  charter  of  the  company,  they  were 
obliged  to  construct  and  keep  in  repair  suitable  wagouways  over  or 
under  their  road  whore  ihe  railroad  intersected  any  farm.  During  the 
deliberations  of  the  arbitrators,  the  complainant  stated  that  lu>  should 
require  a  suitable  wagomvay  over  the  railroad  where  it  crossed  his  farm, 
but  II.  and  \V.  replied  that  this  was  a  matter  with  which  the  arbitrators 
had  nothing  to  do,  and  was  no  part  of  the  submission.  This  view  was 
assented  to  by  the  arbitrators  and  both  parties.  The  arbitrators  made  their 
award,  and  II.  and  W.  waited  on  complainant  with  the  money  awarded 
and  the  draft  of  a  deed.  The  complainant  objected  to  signing  this  deed,  on 
the  ground,  that  it  did  not  in  express  terms  reserve  all  his  rights  to  a  cross- 
ing ;  but  finally  executed  it,  on  being  assured  by  II.  and  W.,  OIK-  of  whom 
was  a  lawyer,  that  such  rights  would  not  be  affected  by  the  instrument. 
The  company  having  failed  to  put  np  a  ciossing  after  being  legally  no- 
tified, the  complainant  made  it  at  his  own  expense,  and,  by  virtue  of  an 
authority  contained  in  their  charter,  sued  them  at  law  for  the  money 
expended.  The  company  set  up  the  deed  as  a  bar  to  the  recovery.  This 
bill  was  filed  to  reform  the  deed  and  enjoin  the  defendants  from  inter- 
posing it  as  a  defence  at  law.  The  company  filed  a  demurrer  to  the  bill. 

Held  that,  as  between  the  company  and  the  complainant,  II.  and  W.  were 
the  agents  of  the  company  in  procuring  a  deed  for  the  complainant's 
land,  notwithstanding  the  fact  that  they  were  bound  by  a  contract  with 
the  company  to  procure  the  right  of  way  for  tne  railroad  over  complain- 
ant's land,  and  that  representations  made  by  II.  and  W.  to  complainant 
arc  to  be  regarded  as  made  by  the  company,  and  that  the  company  are 
estopped  from  setting  np  the  deed  for  any  purpose  so  distinctly  repudi- 
ated in  their  bargain. 

That  the  company,  by  accepting  the  deed,  ratified  what  was  done  by  II.  and 
W.  in  their  behalf,  and  although  it  is  true  that  no  one  is  bound  by  his 
ratification  of  what  has  been  done  in  his  behalf,  unless  he  is  informed  of 
all  the  circumstances,  yet  he  cannot  avail  himself  of  the  benefit  of  the 
act  except  r.inn  oncrc. 

The  company  being  responsible  for  the  acts  of  their  agents,  s:ich  a  defence 
would  be  wholly  inequitable  and  unjust.  The  complainant  should  not 
be  comix-lied  to  be  at  the  hazard  or  expense  of  litigating  it.  Whether 
the  company,  by  a  correct  construction  of  the  deed,  are  released  from 
the  liability  imposed  by  their  charter  to  construct  the  bridge—  (jitcry. 

The  injunction  granted  by  the  Chancellor  against  the  use  of  the  deed  by 
the  company  as  a  defence  to  complainant's  suit  at  law,  held  a  suflicient 
protection  to  the  complainant  without  determining  the  question  of  his 
rijrhl  to  have  the  deed  reformed. 


This  was  an  appeal  from  the  Chancellor's  decree. — Sec  the 
case  reported  in  Chancery,  in  1  Bcasley  1G5. 


NOVEMBER  TERM,  1862.  471 

Morris  and  Essex  Railroad  Co.  v.  Green. 
E.  W.  Whclpley,  for  appellants. 

Chandler  and  Frdinyliuysen,  for  respondent. 

The  opinion  of  the  court  was  delivered  by 

Biiowx,  J.  It  appears,  from  the  pleadings  and  proofs  in 
this  case,  that  Samuel  B.  Halsey  and  Freeman  Wood,  before 
the  railroad  company  located  the  extension  of  their  road  to 
Dover,  agreed  with  them,  that  if  they  would  adopt  the  route 
by  Rockawuy  (where  they,  Wood  and  Hulsey,  had  property,) 
to  guarantee  to  the  company  the  right  of  way  clear  of  ex- 
pense for  a  portion  of  the  distance,  and  to  indemnify  them 
from  all  damages  tiiat  might  arise  or  be  assessed  for  so  much 
of  the  right  of  way,  and  to  pay  and  satisfy  all  such  damages, 
and  this  agreement  reduced  to  writing  and  sealed ;  that  the 
respondent,  Thomas  Green,  owned  lands  in  this  route,  and 
Halsey  and  Wood  applied  to  him  for  the  right  of  way  over 
it,  and  not  being  able  to  agree  with  him,  so  informed  the 
company ;  that  the  company  had  the  damages  assessed  by 
commissioners,  pursuant  to  their  charter,  and  their  report 
filed;  that  Green,  being  dissatisfied  with  the  amount  reported 
in  his  favor,  took  the  proper  steps  for  an  appeal,  and  as  ap- 
pears by  the  bill  and  answer,  while  such  appeal  was  pending, 
Halsey  and  Wood  agreed  with  him  in  behalf  of  the  company, 
as  they  said,  to  arbitrate  the  question  of  amount  of  dam- 
ages ;  that  the  arbitration  was  had,  and  the  amount  awarded 
paid  by  Halsey  and  Wood  ;  that  before  paying  the  amount, 
they  insisted  upon  Green's  executing  a  deed  to  the  company, 
which  Halsey  had  prepared,  by  the  terms  of  which  Green, 
in  consideration  of  §800  (the  amount  awarded  to  him)  paid 
to  him  by  the  company,  and  the  receipt  of  which  was  ac- 
knowledged, conveyed  to  the  company  the  right  to  enter 
upon  his  land  by  their  agents,  and  to  take  possession  of,  oc- 
cupy, and  excavate  the  same,  lay  rails,  and  do  all  other 
.things  suitable  or  necessary  for  the  completion  or  repair  of 
their  road ;  to  have  and  hold  the  same  to  the  company,  its 
successors  and  assigns  for  ever,  for  the  purposes  mentioned, 


472       COURT  OF  ERRORS  AND  APPEALS. 

Morris  and  Rsscx  Railroad  Co.  r.  Green. 

and  for  all  other  purposes  mentioned  in  their  charter  and 
the  supplemc-nts  thereto.  At  the  time  of  the  assessment  by 
commissioners,  the  award  of  arbitrators,  and  at  the  time  of 
giving  the  deed,  Green  claimed,  that  besides  the  damages  he 
was  to  receive,  the  company  were  bound  to  make  a  bridge 
over  the  excavation  on  his  land  at  a  place  where  he  had  a 
farm  road,  and  was  told,  from  the  beginning,  that  that  ques- 
tion was  not  involved  in  the  question  of  damages.  He  gave 
the  deed,  and  afterwards  gave  notice,  as.  required  by  the 
ninth  section  of  the  charter,  to  the  company  that  they  were 
required  to  build  a  bridge  at  the  place  referred  to,  and  that 
if  they  neglected  to  do  so,  he  would  build  it  himself,  and  look 
to  them  for  the  expense  and  value  of  it.  The  company  re- 
fusing to  build  it,  Green  did  it,  and  sued  the  company  for 
the  cost;  the  company  pleaded  the  general  issue,  and  gave 
notice  that  they  would  give  in  evidence  the  deed  above  men- 
tioned, and  rely  upon  it  as  a  bar  to  the  action.  Green  there- 
upon filed  the  bill  now  here,  stating  these  facts,  praying  to 
have  the  deed  reformed  by  inserting  an  exception  of  the 
right  to  a  bridge  on  the  ground  of  mistake,  and  to  enjoin 
the  company  from  using  the  deed  as  a  bar  to  the  action  be- 
cause of  the  mistake,  and  further,  because  such  a  use  of  it 
would  be  fraudulent.  The  Chancellor  decrqcd  in  favor  of 
the  complainant  on  both  points.  The  company  appeal  from 
the  decree. 

The  first  question  is,  should  the  company  be  enjoined  from 
making  such  use  of  this  deed? 

The  proof  is  plenary  of  the  representation  by  Halsey  and 
Wood,  before  the  execution  of  the  deed  to  Green,  that  it 
would  have  no  effect  upon  the  right  to  a  bridge,  if  such  ex- 
isted. Wood  says,  in  his  testimony,  that  Green  refused  to 
give  the  deed  on  this  account,  and  that  he  and  Halsey  labored 
to  show  him  that  it  would  have  no  such  effect  as  he  appre- 
hended, and  that  he  finally  yielded  to  their  view.  There  is 
no  doubt  that  Messrs.  Halsey  and  Wood  were  entirely  honesfc 
in  their  statements  on  this  subject,  but  it  is  manifest  that 
tiiey  could  not  honestly  set  up  the  deed  for  a  purpose  so  dis- 


NOVEMBER  TERM,  1862.  473 

Morris  and  Essex  Railroad  Co.  ».  Green. 

tinctly  repudiated  in  their  bargain.  They  would  be  estopped 
ill  equity. 

So,  if  these  representations  are  to  be  regarded  as  made  by 
the  company  through  their  agents,  they  should  not  be  per- 
mitted to  set  up  this  deed  as  a  bar.  It  would  be  a  fraudulent 
use  of  the  deed.  They  are  also  estopped.  The  company  do 
not  deny  this,  but  allege  that  Halsey  and  Wood  were  not 
their  agents,  and  that  they  had  no  knowledge  of  what  repre- 
sentations they  made  to  Green,  and  are  not  responsible  for 
them.  As  to  the  agency,  I  think  the  company  are  mistaken. 

The  arrangement  was,  that  in  consideration  that  the  com- 
pany would  locate  their  road  to  suit  Messrs.  Halsey  and 
Wood  they  would  procure  the  right  of  way  for  the  company 
at  their  own  cost.  The  agreement  on  that  subject,  and  the 
statement  in  the  answer  as  to  it,  shows  this  to  be  so.  The 
only  mode  of  procuring  these  rights  of  way  is  by  agreements 
between  the  company  and  landowners,  or  assessments  be- 
tween them  of  the  damages  on  failure  to  agree.  Messrs. 
Halsey  and  Wood  were  therefore  to  procure  agreements  be- 
tween- the  landowners  and  the  company  for  the  right  of  way 
if  they  could,  and  to  have  assessments  made  if  they  could 
not.  Is  a  man  who  procures  a  contract  to  be  made  between 
two  other  mqn  anything  but  an  agent?  He  may  contract 
to  procure  the  contract  for  a  stipulated  sum  or  any  other  con- 
sideration, but  in  procuring  the  contract  he  is  an  agent.  The 
parties  do  not  negotiate  with  each  other — he  negotiates  be- 
tween them.  In  this  case  the  title  to  the  right  of  way  must 
be  made  to  the  company — they  only  can  receive  it.  They  say 
to  Messrs.  Halsey  and  Wood,  we  will  take  the  route  you  wish, 
if  you  will  at  your  own  expense  procure  titles  to  us  for  the 
right  of  way  from  the  landowners.  Between  the  landowners 
and  the  company,  Halsey  and  Wcod  are  agents  and  nothing 
else.  They  make  no  contract  with  Mr.  Green,  but  negotiate 
one  between  him  and  the  company  and  for  the  company. 

Again,  by  receiving  the  deed,  the  company  ratify  what 
Messrs.  Halsey  and  Wood  have  done  in  their  behalf.  Sub- 
sequent assent  to  an  assumed  agency  is  equivalent  to  a  pre- 


474      COURT  OF  ERRORS  AND  APPEALS. 

Morris  and  Essex  Railroad  Co.  v.  Green. 

vious  authority.  It  is  true  that  no  one  is  bound  by  his  rati- 
fication of  what  has  been  dqne  in  his  behalf,  unless  he  is 
informed  of  all  the  circumstances.  He  may  in  such  case 
withdraw  his  approval  and  repudiate  the  act  if  he  has  been 
deceived,  but  he  cannot  avail  himself  of  the  benefit  of  the 
act  except  cum  onere. 

In  this  case,  if  the  company  had  been  surprised  by  the 
representations  made  by  Messrs.  Halsey  and  Wood,  they 
might  have  repudiated  the  deed,  even  after  the  acceptance 
of  it ;  but  they  cannot  hold  and  use  it  free  of  the  equities 
arising  from  the  manner  in  which  it  was  obtained.  By  the 
acceptance  the  act  done  in  their  behalf  was  ratified  by  hold- 
ing the  deed ;  and  insisting  upon  their  right  to  use  it,  they 
are  now  ratifying  it  after  notice  of  what  was  done  at  and 
before  the  time  it  was  delivered. 

The  effect  upon  the  company's  right  under  the  deed  is  the 
same  as  if  Messrs.  Halsey  and  Wood  had  acted  under  the 
usual  agency  to  procure  titles  for  them.  What  they  said  to 
Mr.  Green  has  the  same  effect  as  if  it  had  been  communicated 
by  the  company,  provided  it  was  within  the  scope  of  such  an 
agency. 

The  rule  is  stated  in  Story  on  Agency,  §  135,  as  follows: 
"  If  the  agent,  at  the  time  of  the  contract,  makes  any  re- 
presentation, declaration,  or  admission  touching  the  matter  of 
the  contract,  it  is  treated  as  the  representation,  declaration, 
or  admission  of  the  principal  himself."  These  representations 
were  made  at  the  time  of  the  delivery  of  the  deed,  and  Mr. 
Wood  says  that,  but  for  them,  he  believes  it  would  not  have 
been  given. 

I  think  it  is  clear  that  the  Chancellor  rightly  decreed  that 
the  company  should  be  enjoined  from  setting  up  the  deed  or 
award  as  a  bar  in  the  action  at  law  for  the  cost  or  value  of 
the  bridge  in  question. 

The  company  being  responsible  for  the  acts  of  their  agents, 
such  a  defence  would  be  wholly  inequitable  and  unjust.  The 
respondent  should  not  be  compelled  to  be  at  the  expense  or 
hazard  of  litigating  it. 

The  remaining  question  in  the  case  is,  whether  the  deed 


NOVEMBER  TERM,  1862.  475 

Morris  and  Essex  Railroad  Co.  v.  Green. 

should  be  reformed  so  as  to  contain  an  exception  of  the  com- 
plainant's right  to  the  construction  of  a  bridge  by  the  com- 
pany on  the  ground  of  mistake. 

It  is  objected  that  the  mistake,  if  any,  was  one  of  law,  and 
not  of  fact.  Such  mistakes  may  have  been  corrected  in  equity 
in  cases  like  the  present.  It  was  occasioned  here  by  the 
advice  and  opinion  of  the  agents  of  the  company,  one  of  them 
a  lawyer,  and  both  men  of  high  character  for  intelligence  and 
integrity.  It  is  not  a  mere  mistake  of  the  party  asking  a 
reformation  of  the  instrument,  but  one  induced  by  the  agents 
of  the  other  party.  It  will  not  do  to  say  that  Mr.  Green 
ought  not  to  have  trusted  his  adversaries.  They  were  not 
such  as  to  the  bridge  right.  They  had  no  interest  in  that 
question,  and  throughout  the  negotiation,  including  the  assess- 
ment, award,  and  the  execution  of  the  deed,  maintained  to 
Mr.  Green  that  it  had  nothing  to  do  with  the  right  of  way 
they  were  to  procure  for  the  company. 

But  the  case  seems  to  belong  rather  to  the  jurisdiction  of 
the  courts  of  equity  in  cases  of  constructive  frauds,  than  that 
of  mistake.  It  may,  notwithstanding  the  case  of  Brearley 
v.  The  Delaware  and  Raritan  Canal  Co.,  Spencer  It.  23G,  be 
questioned  whether,  upon  a  fair  construction  of  this  deed,  it 
does  release  the  company  from*  the  charter  obligation  to  con- 
struct roadways.  This  point  is  not  directly  before  the  court, 
nor  is  it  needful  to  express  any  opinion  upon  it  in  order  to 
give  the  complainant  relief.  The  injunction  decreed  by  the 
Court  of  Chancery  is  sufficient  for  that  purpose,  so  far  as  re- 
spects the  suit  now  pending  at  law;  and  if  desired  by  the 
complainant,  this  court  would  no  doubt  order  it  enlarged  so 
as  to  embrace  any  future  suit  for  the  same  cause  of  action.' 

Decree  of  the  Chancellor  affirmed,  excepting  the  clause 
relating  to  the  reformation  of  the  deed. 

The  Chancellor's  decree  was  affirmed  by  the  following  vote : 

For  affirmance — Judges  BROWN,  COMES,  ELMER,  HAINES, 
KENNEDY,  OGDEN,  VAN  DYKE,  VREDENBURGH — 8. 

For  reversal — None. 


470       COURT  OF  ERRORS  AND  APPEALS. 


Campion  t.  Killc. 


JOSEPH  II.  CAMPION  vs.  ROBERT  KILLE. 

Bill  on  a  mortgage — answer  usury — proof  that  the  contract  was  executed 

in  Pennsylvania. 
JIM — 1.  That  tlic  proof  did  not  support  the  answer. 

2.  That  this  court  will  not  oflicially  recognize  the  usury  laws  of  other 
countries. 

3.  That  this  court  would  not  reverse  to  enable  the  defendant  to  amend  his 
pleadings  and  adduce  his  proof. 

The  lien  of  the  writ  of  attachment  before  judgment  does  not  take  priority 
over  a  previous  unregistered  mortgage. 


This  was  an  appeal  from  the  opinion  of  (lie  Chancellor,  as 
reported  in  1  Mv Carter,  p.  229. 

It  was  argued  on  appeal  by 
A.  Uroicnhiff,  for  appellant. 
P.  L.  Voorliccs,  for  respondent. 

The  opinion  of  the  court  was  pronounced  by 
VRKHKXHURGIT,  J.  The  bill  states  that,  on  the  7th  of 
April,  1858,  the  defendant  gave  a  mortgage  on  his  property 
for  the  amount  of  $7500,  payable  in  two  years  with  interest, 
which  mortgage  came  afterwards,  by  divers  assignments,  to 
the  complaint;  that  the  mortgage  was  recorded  on  the  llth 
May,  1859;  that,  on  the  9th  February,  1859,  Brown  and 
Goodwin  sued  out  of  the  Supreme  Court  of  this  state  a 
foreign  attachment  against  said  Kille,  upon  which  judgment 
was  entered,  on  the  IGth  April,  I860,  for  $6542. 

Killc  answers  that,  tafore  the  execution  and  delivery  of 
said  mortgage,  he  had  borrowed  and  received  from  Stecle  & 
Co.,  the  original  mortgagees,  divers  sums  of  money,  upon  and 
by  reason  of  an  agreement  to  pay  them  usurious  interest, 
which  sum*,  with  the  usurious  interest  thereon  at  the  time  of 
the  delivery  of  the  mortgage,  amount  to  the  sum  of  $3900; 
that  ou  the  27th  March,  1858,  Steele  &  Co.  corruptly  agreed 


NOVEMBER  TERM,  1863.  477 

Campion  v.  Kille. 

with  him,  Kille,  to  deliver  to  him  circulating  notes  of  the  Bank 
of  Pennsylvania  to  the  nominal  amount  of  $4500,  and  that  lie 
should  give  to  Steele  &  Co.  the  bond  and  mortgage  in  ques- 
tion for  a  sum  sufficiently  large  to  cover  not  only  the  said 
sum  of  $3900,  but  also  80  per  cent,  of  the  nominal  value  of 
said  circulating  notes,  Avell  knowing  that  said  notes  \vere 
worth  only  from  forty-seven  to  forty-nine  cents  on  the  dollar, 
and  that  he  did  receive  the  said  notes,  amounting,  at  eighty 
cents  on  the  dollar,  to  the  amount  of  $3600,  which  with  the 
$3900  makes  the  sum  of  $7500,  the  amount  of  said  mortgage. 
Neither  the  bill  or  answer  avers  the  place  of  contract. 

The  bond  and  mortgage  are  good  by  universal  law,  and 
therefore  the  bill  is  good  without  any  averment  of  place. 
Usury  is  matter  of  local  law,  and  therefore  the  averment  of 
usury  in  the  answer  necessarily  intends  that  the  facts  stated 
constitute  usury  under  the  local  laws  of  this  state. 

But  the  proof  sliows  that  this  contract  was  executed  in 
Pennsylvania.  The  contract  could  not  therefore  have  been 
usurious  under  the  laws  of  this  state,  and  the  answer  is  con- 
sequently entirely  unsupported  by  the  evidence. 

But  it  is  said  that  the  facts  stated  show  usury  under  the 
laws  of  Pennsylvania.  But  this  can  constitute  no  defence, 
for  two  reasons :  first,  because  it  is  not  averred  in  the  answer 
that  such  facts  constitute  usury  under  the  laAvs  of  Pennsyl- 
vania ;  and  secondly,  if  such  allegation  had  been  made,  it  is 
entirely  unsupported  by  any  evidence.  We"  do  not  know 
officially  what  the  laws  of  every  nation  of  the  earth  are  re- 
specting usury ;  we  know  they  vary  more  or  less  in  almost 
every  government,  and  when  it  is  necessary  to  manifest  what 
such  local  laws  are  in  our  courts,  it  should  appear  by  aver- 
ment and  proof. 

The  same  answer  may  be  given  to  the  suggestion,  that  by 
the  laws  of  Pennsylvania  the  mortgagee  can  only  recover 
the  sum  actually  advanced  upon  the  mortgage,  there  is  uo 
averment  of  such  law,  and  if  there  was,  there  is  no  such 
proof. 

Nor  could  it  be  proper  in  this  stage  of  the  case  to  reverse 

VOL.  ii.  2  Q 


478       COURT  OF  ERRORS  AND  APPEALS. 

Skillman  r.  Skillman. 

the  decree,  in  order  to  send  it  back  to  Chancery  to  enable  the 
defendant  to  amend  his  pleadings  and  adduce  his  proof. 

The  custom  of  Chancery  is  not  to  allow  a  defendant,  who 
has  permitted  his  time  to  answer  to  pass  by,  additional  time 
to  answer  in  order  to  set  up  usury,  much  less  will  it  do  so 
when  the  cause  has  regularly  progressed  upon  pleadings  and 
proofs  to  a  final  hearing. 

As  to  the  question  of  priority  between  the  attaching  cred- 
itor and  the  complainant,  the  statute,  Nix.  Dig.  124,  §  18,  by 
its  very  terms,  makes  the  mortgage  not  recorded  according  to 
its  provisions  void  only  as  against  subsequent  judgment 
creditors  or  bona  fide  purchasers  or  mortgagees  for  valuable 
consideration  not  having  notice  thereof,  but  does  not  make  it 
BO  as  against  creditors  in  attachment. 

By  the  act,  Nix.  Dig.  33,  §  7  and  8,  the  attachment  only 
binds  the  property  and  estate  of  the  defendant  in  attachment, 
and  cannot  affect  the  estate  of  other  persons  therein  acquired 
previous  to  the  issuing  of  the  attachment. 

I  think  the  decree  should  be  affirmed. 

The  decree  of  the  Chancellor  was  affirmed  by  the  following 
vote : 

For  affirmance — Judges  BROWN,  COMBS,  CORXELISON,  EL- 
MER, HAFNES,  OGDEN,  SWAIN,  VREDENBURGH,  WHELPLEY, 
WOOD— 10. 

For  reversal — Judge  KENNEDY — 1. 

CITED  in  Atrcater  v.  Walker,  1  C.  E.  Gr.  42;  Vandenecr's  Adm'r  T.  Hoi- 
comb,  7  C.  E.  Gr.  656. 


RACHEL  SKILLMAN  vs.  JOHN  G.  SKILLMAN  and  others. 

When  a  married  woman,  with  the  consent  of  her  husband,  contracted  for 
•the  purchase  of  a  lot  of  land,  which  was  afterwards  conveyed  to  the 
husband,  who  paid  the  purchase  money  and  erected  a  house  on  the  lot, 
.part  of  the  cost  of  which  was  paid  by  the  husband,  and  the  balance  was 


NOVEMBER  TERM,  1863.  479 


Skillman  v.  Skillman. 


secured  by  his  bond  and  mortgage  on  the  premises,  which  was  afterwards 
paid  by  the  wife  by  money  derived  from  her  own  earnings — 

Held,  that  these  circumstances  fail  to  establish  any  resulting  trust  in  the 
wife,  or  show  any  interest  in  the  property  in  her  paramount  to  the  title 
of  the  husband. 

By  the  common  law,  the  earnings  of  the  wife  by  the  product  of  her  skill 
and  labor  belong  to  the  husband.  They  do  not  become  the  property  of 
the  wife,  even  in  equity,  without  a  clear,  express,  irrevocable  gift,  or 
some  distinct  affirmative  act  of  the  husband  divesting  himself  of  them 
or  setting  them  apart  for  her  separate  use. 

An  injunction,  which  had  been  allowed  at  the  instance  of  the  wife,  to  pre- 
vent a  judgment  creditor  of  the  husband  from  satisfying  his  judgment 
out  of  the  land,  held  to  have  been  properly  dissolved. 


This  was  an  appeal  from  the  decree  of  the  Chancellor  in 
the  case  reported  in  2  Beasley,  p.  403. 

Leupp,  for  appellant. 
Speer,  for  respondent. 

The  opinion  of  the  court  was  delivered  by 

HAINES,  J.  The  complainant,  by  her  bill,  claims  to  have 
an  equitable  interest  in  a  certain  house  and  lot  of  land,  the 
legal  title  to  which  was  in  her  husband  at  the  time  of  his 
death,  and  she  seeks  to  have  it  protected  against  a  judgment 
obtained  by  the  defendant,  John  G.  Skillman,  against  her 
husband,  in  his  lifetime,  on  a  bond  and  warrant  of  attorney 
to  confess  judgment,  upon  the  ground  that  the  judgment  was 
without  consideration  and  fraudulent  and  void.  The  equity 
of  the  bill  rests  in  allegation  of  a  right  and  interest  of  the 
complainant  in  the  house  and  lot,  and  in  the  fraudulent  in- 
tent of  the  defendant,  John  G.  Skillman,  in  procuring  the 
judgment.  The  charge  of  fraud  is  fully  denied  by  the  an- 
swer in  response  to  the  bill ;  so  that  if  the  complainant  has 
any  interest  in  the  property,  and  was  in  a  situation  to  ques- 
tion the  validity  of  the  judgment,  on  this  explicit  denial  of 
the  fraud  charged  the  injunction  might  have  been  properly 
dissolved.  But  the  case  made  does  not  show  such  an  interest 
in  the  property  as  would  entitle  her  to  protection  against 


480       COURT  OF  ERRORS  AND  APPEALS. 

Skillman  v.  Skillman. 

the  judgment,  even  if  it  were  fraudulent.  Her  claim  is  not 
based  on  a  right  of  dower,  and  if  it  had  been  it  would  have 
needed  no  protection  in  this  form,  as  the  judgment  against 
her  husband  could  not  affect  her  dower.  But  she  claims  by 
a  right  in  equity  paramount  to  the  legal  title  of  her  husband. 
She  insists  that,  having  negotiated  for  the  purchase  of  a  lot 
of  ground  and  for  the  building  of  the  house,  and  paid  a  con- 
siderable portion  of  the  purchase  money,  a  trust  results  to 
her.  On  examining  the  allegations  of  the  bill,  it  appeara 
that  she,  with  the  knowledge  of  her  husband,  negotiated  for 
the  purchase  of  the  lot,  and  that  it  was  conveyed  to  him,  and 
he  paid  the  purchase  money ;  that  afterwards  a  contract  was 
made  for  the  erection  of  a  small  house  on  the  lot,  at  the  cost 
of  six  hundred  and  seventy-five  dollars,  of  which  sum  five 
hundred  dollars  were  secured  by  his  bond  and  his  and  her 
mortgage  on  the  property,  and  the  residue,  one  hundred  and 
seventy-five  dollars,  paid  to  the  contractor.  It  is  not  alleged 
to  have  been  paid  by  her,  and  the  presumption  is  that  it 
was  paid  by  her  husband.  Thus  far  the  whole  consideration 
money  on  the  purchase  of  .the  lot  and  the  cost  of  the  build- 
ing were  paid  and  secured  by  the  husband.  After  this,  and 
until  May,  1854,  she  paid  the  yearly  interest  on  the  bond 
and  mortgage  and  one  hundred  dollars  of  the  principal. 
She  afterwards  contributed  to  the  monthly  payments  on  two 
shares  of  Mechanics  Building  and  Loan  Association,  pur- 
chased by  him,  until  he  became  entitled  to  a  loan  of  four 
hundred  dollars,  which  was  taken  and  secured  by  a  mort- 
gage on  the  house  and  lot,  and  with  that  money  the  residue 
of  the  sum  secured  by  the  original  mortgage  was  paid.  She 
afterwards  contributed  to  the  monthly  payments  due  by  way 
of  interest  on  the  loan,  until  the  value  of  the  t\vo  shares 
were  so  enhanced  as  to  be  nearly  sufficient  to  pay  off  the  last 
mortgage,  all  of  which  payments  so  made  by  her  were 
almost  entirely  from  her  own  earnings,  her  husband  con- 
tributing but  little  towards  it.  Admitting  the  entire  truth 
of  all  these  allegations,  they  fail  to  establish  a  resulting  trust 
or  to  show  any  interest  in  the  property  paramount  to  the 


NOVEMBER  TERM,  1863.  481 


Barnett  v.  Johnson. 


title  of  her  husband.  By  the  common  law,  the  earnings  of 
the  wife,  the  product  of  her  skill  and  labor,  belong  to  the 
husband.  They  do  not  become  the  property  of  the  wife,  even 
in  equity,  without  a  clear,  express,  irrevocable  gift  or  some 
distinct  affirmative  act  of  the  husband  divesting  himself  of 
them  or  setting  them  apart  for  her  separate  use.  There  is 
no  allegation  of  any  such  act  here.  She  was  permitted  to 
apply  the  product  of  her  labor,  not  to  her  own  use,  but  to 
the  payment  of  her  husband's  debts.  Her  object  was  truly 
praiseworthy  and  her  efforts  provident.  She  meant  to  secure 
a  home  for  herself  and  her  family ;  and  it  may  be  regretted 
that  they  had  not  taken  proper  measures  to  accomplish  that 
purpose.  As  the  business  was  transacted,  the  title  to  the 
house  and  lot  was  in  her  husband,  and  the  purchase  money 
and  the  cost  of  building  paid  by  him,  and  out  of  money  be- 
longing to  him.  The  legal  and  equitable  title  vested  in  him. 
There  was  nothing  done  or  suffered  to  divest  him  of  such 
title,  even  as  between  him  and  his  wife,  much  less  as  between 
him  and  his  creditors.  The  bill  was  properly  dismissed,  and 
the  decree  of  the  Chancellor  must  be  affirmed,  but,  under  the 
peculiar  circumstances  of  the  case,  without  costs. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

for  affirmance — Judges  BROWN,  COMBS,  CORNELISON,  Ei,- 
MER,  HAIXES,  KENNEDY,  OGDEN,  FORT,  SWAIN,  VREDEN- 
BURGH,  WHELPLEY — 11. 

For  reversal — None. 


JOHN  BARNETT,  appellant,  and  THOMAS  Y.  JOHNSON,  re- 
spondent. 

When  the  Morris  Canal  Company  take  land  under  their  charter  the  whole 
present  interest  is  vested  in  them,  and  that  whether  they  take  by  con- 
demnation or  by  deed. 


482       COURT  OF  ERRORS  AND  APPEALS. 


Barnett  v.  Johnson. 

In  such  case  the  prior  owner  has  no  interest  in  the  land  taken  by  the  com- 
pany which  lie  can  protect  by  injunction. 

Two  classes  of  rights,  originating  in  necessity,  spring  up  coeval  with  every 
highway  ;  the  first  relates  to  the  public  passage ;  the  second,  equally  per- 
fect, but  subordinate  to  the  first,  relates  to  the  adjacent  owners.  Among 
the  latter  is  that  of  receiving  from  the  public  highway  light  and  air. 

The  Morris  canal  is  a  public  highway.  It  is  not  the  less  a  highway  be- 
cause of  the  tolls  and  by  reason  of  its  being  subject  to  the  regulations 
of  the  company. 

Owners  of  land  adjacent  upon  the  Morris  canal  have  the  privilege  of  re- 
ceiving from  it  light  and  air ;  provided,  in  so  doing,  they  do  not  inter- 
fere with  the  most  convenient  use  of  the  canal  as  a  public  highway,  or 
with  any  of  the  regulations  of  the  directors  made  bona  fide  for  that  pur- 
pose. 

The  complainant  owned  a  lot  in  the  city  of  Newark,  adjacent  upon  the 
line  of  the  Morris  canal,  and  buiU  a  house  touching  the  line,  with  win- 
dows facing  the  canal.  Held,  that  this  court  will  restrain  the  defendant, 
holding  under  the  company,  from  erecting  a  building  over  the  canal 
BO  as  to  shut  up  the  complainant's  windows. 


Upon  the  filing  of  the  complainant's  bill  in  the  Court  of 
Chancery,  an  injunction  was  granted  ex  parte.  The  defend- 
ant, having  filed  his  answer,  moved  to  dissolve.  This  motion 
was  argued  before  Mercer  Beasley,  esquire,  master,  <&c.,  to 
whom  the  matter  was  referred  by  the  Chancellor,  (William- 
son) he  having  been  of  counsel  with  the  defendant  in  relation 
to  matters  contained  in  the  bill.  Upon  .  recommendation  of 
Master  Beasley,  the  Chancellor  made  an  order  dissolving  the 
injunction.  From  this  order  an  appeal  was  taken. 

F.  T.  Frdinghuysen,  for  appellant. 
0.  S.  Hoisted,  for  appellee. 

The  opinion  of  the  court  was  delivered  by 

VREDENBURGH,  J.  The  complainant  in  the  Court  of  Chan- 
cery, who  is  also  the  appellant  in  this  court,  owns  a  house 
and  lot  in  the  city  of  Newark  binding  on  the  east  upon 
Broad  street,  and  on  the  south  upon  the  Morris  canal.  Over 
this  last  the  defendant,  under  a  license  from  the  canal  com- 
pany, proposes  springing  an  arch,  and  erecting  a  building, 


NOVEMBER  TERM,  1856.  483 


Barnett  v.  Johnson. 


several  stories  high,  touching  the  house  and  shutting  up  the 
windows  of  the  complainant. 

An  injunction  is  prayed. 

The  company  was  chartered  in  1824.  In  1828  and  1830 
they  located  and  constructed  the  north  side  of  their  canal 
upon  a  portion  of  the  south  side  of  the  complainant's  lot,  to 
wit,  a  portion,  in  the  shape  of  a  wedge,  three  feet  wide  upon 
Broad  street,  and  running  back  one  hundred  feet,  to  a  point 
in  the  rear.  The  balance  of  the  land  wanted  was  obtained 
from  other  parties.  After  it  was  built,  to  witj  in  1832,  the 
complainant  erected  his  said  house  with  several  windows 
facing  upon  the  canal. 

In  1837  the  proceedings,  theretofore  instituted  under  the 
charter  to  condemn  this  gore,  being  deemed  imperfect,  the 
company  paid  the  complainant  the  consideration  money,  and 
he  executed  to  them  a  release  of  all  his  interest  in  the  same. 

It  is  admitted  that  the  building  the  defendant  proposes  to 
erect  is  not  wanted  for  any  purposes  connected  with  the  canal, 
or  for  the  most  perfect  enjoyment  by  the  company  of  all  their 
corporate  franchises. 

The  complainant  insists  that  he  is  entitled  to  relief. 

First.  Because  whether  the  company  hold  this  gore  by 
condemnation  or  release,  they  acquire  thereby  only  a  right  to 
construct  their  canal  upon  it,  and  to  use  it  for  canal  purposes  ; 
that  all  other  interests  are  reserved  to  himself;  that  this  build- 
ing would  in  fact  be  on  his  own,  and  not  on  the  defendant's 
land. 

Second.  Because  this  canal  is  a  public  highway,  and  he  the 
adjacent  owner,  and  that  he  has  thereby  of  common  right 
the  privilege  of  receiving  light  and  air  from  it  without  this 
obstruction. 

Third.  Because,  in  1832,  he  erected  his  said  building  upon 
the  faith  that  the  canal  had  been  dedicated  as  a  public  high- 
way by  the  company,  and  that  thence  a  contract  is  implied 
that  they  would  put  it  to  no  use  inconsistent  with  that  dedi- 
cation detrimental  to  his  building. 

The  company  insist  that  they  own  the  locus  in  quo,  and 
have  a  right  to  do  with  their  own  as  they  please. 


484       COURT  OF  ERRORS  AND  APPEALS. 

Earnelt  v.  Johnson. 

The  complainant,  to  entitle  himself  to  relief,  must  show 
not  merely  that  the  defendant  had  no  right  to  put  up  this 
building,  but  also  an  actual  affirmative  right  to  prevent  it. 

First.  What  is  the  operation  of  the  titles  under  which  the 
company  hold  this  gore?  Upon  this  point  I  am  of  opinion 
that  the  whole  present  interest  is  vested  in  them,  and  that, 
too,  whether  they  hold  under  the  condemnation  or  under  the 
release. 

The  6th  section  of  the  charter  enacts,  that  after  condem- 
nation, the  estate,  right,  property  and  interest  in  the  pre- 
mises shall  immediately  vest  in  the  company,  to  be  held  as 
long  as  they  shall  be  used  for  the  purposes  of  said  canal. 
The  release,  in  terms,  conveys  the  same  thing  for  ever.  It  is 
still  used,  and  if  the  defendant's  building  be  put  up,  it  would 
still  continue  to  be  used  for  the  purposes  of  a  canal.  They 
would  take  by  release  certainly,  if  its  terms  were  broad 
enough,  as  great  an  estate  as  they  could  by  condemnation. 
If  by  condemnation  the  estate,  right,  property,  and  interest 
vested  in  the  company,  how  could  there  remain  any  in  the 
complainant?  The  charter  vested  in  the  company  not  merely 
a  right  to  use  it  for  canal  purposes,  but  the  entire  estate, 
right,  property,  and  interest  in  the  premises  as  long  as  they 
.shall  be  used  for  the  purposes  of  the  canal.  Whether  the 
company  then  hold  under  the  one  or  the  other,  the  com- 
plainant ctm  have  no  present  interest,  estate,  right,  or  pro- 
perty in  this  gore  as  owner  or  possessor.  He  has  parted 
with  the  entire  fee.  He  has  given  a  deed  for  these  interests 
and  received  the  purchase  money.  To  maintain  that  he  still 
has  any,  would  be  to  enable  him  to  retain  that  for  which  he 
has  been  paid.  It  would  deprive  these  conveyances  of  their 
ancient  force,  and  of  the  very  force  which  the  charter  ex- 
pressly declares  they  shall  have,  and  which,  so  far  as  I  am 
aware,  universal  usage  has  always  given  them.  It  would  be 
retaining  in  the  grantor  uncertain  and  indefinite  rights, 
against  the  express  language  of  the  grant,  as  well  as  against 
the  express  statutory  enactment.  It  would  disenable  every 
turnpike,  railroad,  plank  road,  canal,  and,  indeed,  every  cor- 


NOVEMBER  TEEM,  1856.  485 

Barnett  v.  Johnson. 

poration  which  holds  land  by  statute  or  by  contract,  from 
putting  up  any  building  or  improvement  upon  their  lands,  or 
using  them  for  any  purpose,  except  what  could  be  shown  as 
strictly  necessary  for  the  enjoyment  of  their  corporate  rights, 
and  that,  too,  when  it  would  do  no  injury  to  the  grantors. 
To  so  construe  the  conveyance  in  this  case  would  be  .to  en- 
able the  complainant  to  do  the  very  thing  of  which  he  now 
complains,  and  to  annoy  others,  instead  of  being  annoyed 
himself;  for  if  the  defendant  cannot  erect  this  building  be- 
cause of  an  interest  retained  as  between  these  parties,  the 
complainant  certainly  can.  It  appears  to  me  that  the  fee  to 
this  gore  is  in  the  company,  and  that,  as  between  them  and 
the  complainant,  they  can  do  with  it  as  they  please,  so  long 
as  they  do  not  abandon  it  for  the  purposes  of  the  canal. 

If  the  complainant  can  therefore  enjoin  the  defendant,  it 
is  not  by  virtue  of  his  being  or  having  been  the  owner  of 
this  gore.  He  must  show  some  other  affirmative  right,  and  to 
this  end  he  insists — 

Secondly.  That  the  canal  is  a  public  highway,  and  he  the 
adjacent  owner,  and  that,  as  such,  he  has  of  common  right  the 
privilege  of  receiving  from  it  light  and  air. 

This  leads  to  two  inquiries. 

First.  Is  the  Morris  canal  a  public  highway? 

Second.  If  it  is,  has  the  complainant,  as  an  adjacent  owner, 
the  right  of  receiving  from  it  light  and  air? 

First.  Is  the  Morris  canal  a  public  highway? 

The  25th  section  of  the  charter  enacts  that  the  said  canal, 
when  completed,  shall  forever  thereafter  be  esteemed  a  public 
highway,  free  for  the  transportation  of  all  produce,  &c.,  upon 
payment  of  the  tolls,  &c. 

It  has  been  completed  many  years,  and  is  now  still  in  full 
operation.  It  is  therefore,  by  express  legislative  enactment, 
a  public  highway.  Is  it  not  also  so  in  its  intrinsic  nature? 
A  public  highway  is  defined  to  be  a  public  passage  common 
to  all  the  people.  There-are  various  kinds  of  them,  differing 
in  their  origin,  their  mode  of  construction,  the  vehicles  and 
motive  power  used  upon  them,  the  cheapness  and  speed  with 


486       COURT  OF  ERRORS  AND  APPEALS. 

IJanu'tt  f.  Johnson. 

which  they  may  be  traveled  upon,  and  on  that  account  re- 
quiring and  subject  to  different  police  and  municipal  regula- 
tions, but  all  agreeing  in  what  constitutes  them  public  high- 
ways, viz.  in  being  public  passages  common  to  all  the  people. 
Oceans  and  seas  are  the  highways  of  nations ;  arms  of  the 
sea  and  navigable  rivers  are  the  highways  in  or  between 
different  states  ;  our  common  roads,  turnpikes,  canals,  plank 
roads  and  railroads,  as  generally  used  and  constructed,  either 
directly  or  indirectly  by  the  sovereign  power,  or  recognized 
by  it,  are  equally,  however  differing  in  their  mode  of  uses, 
public  passages  common  to  all  the  people. 

This'act  of  incorporation  is  entitled  an  "act  to  form  an 
artificial  navigation  between  the  Passaic  and  Delaware  riv- 
ers." It  gave  the  company  the  power  to  build  it,  and  to  all 
the  people  the  privilege  to  use  it  upon  paying  the  tolls.  The 
state  did  not  deem  it  expedient  to  construct  the  work  itself, 
but  constituted  the  company  its  agents  for  that  purpose.  It 
paid  the  corporators  with  the  tolls.  The  consideration  to  the 
state  for  its  grant  of  franchise  was  the  advantage  to  the  people 
from  the  construction  of  this  improved  highway.  The  com- 
pany accepted  the  charter,  built  the  work,  and  dedicated  it  to 
the  public  as  a  highway. 

It  is  not  the  less  a  highway  because  of  the  tolls — they  are 
only  an  equitable  mode  of  raising  the  taxes  necessary  to  its 
construction  and  repair — nor  on  account  of  its  being  subject 
to  the  regulations  of  the  company,  requiring  that  passengers 
and  merchandise  .should  be  received  only  at  certain  points — 
nor  on  account  of  any  other  regulations  of  the  directors,  be- 
cause all  these  are  only  to  make  it  not  less,  but  more  of  a 
highway,  a  more  perfect  public  passage  common  to  all  the 
people.  If  a  common  road  is  a  public  highway  because  it  is 
a  public  passage  common  to  all  the  people,  Is  not  the  canal 
much  more  so?  Where  one  person  or  one  ton  of  merchandise 
passes  over  the  common  road,  do  not  fifty  pass  over  the  canal  ? 

The  canal  is  therefore,  by  its  nature,  by  long  use,  by 
dedication,  and  by  express  statutory  enactment,  a  public 
highway. 


NOVEMBER  TERM,  1856.  487 

Barnett  v.  Johnson. 

Second.  Has  the  complainant,  as  adjacent  owner  upon  this 
highway,  of  common  right  the  privilege  of  receiving  from  it 
light  and  air?  If  he  has  the  right,  it  is  not  of  much  con- 
sequence how  it  originated,  or  by  what  name  we  may  call  it. 
For  want  of  a  better,  I  shall  call  this  supposed  right,  as  it 
was  called  by  one  of  the  counsel,  the  right  of  adjacency. 
Rights  of  this  kind  exist  by  as  natural  a  law  as  the  rights  of 
occupancy. 

A  man's  first  instinct  is  to  hold  fast  that  which  he  has,  his 
next,  to  seize  that  which  is  nearest  to  him.  This  idea  is  re- 
cognized in  its  broadest  sense  by  the  law  of  nations,  in  con- 
ceding to  every  independent  community  the  control  over  the 
tide  waters  which  surround  its  shores.  The  lords  of  the  land 
are  the  lords  of  the  circumjacent  seas.  All  riparian  rights  are 
but  instances  of  the  same  general  law. 

The  question  before  us  is  not  whether  this  canal  company 
may  not  be  its  own  riparian  owner,  nor  what  the  company 
or  public  may  do  on  the  dedicated  land  by  virtue  of  their 
eminent  domain  or  for  the  purposes  of  a  highway — nor  is  it 
a  question  as  to  the  powers  of  a  company  to  regulate  accord- 
ing to  their  discretion  the  whole  and  every  question  respect- 
ing the  construction,  repair,  mode  of  use,  and  governjnent 
of  the  canal.  The  question  is  clear  of  everything  respecting 
the  full  enjoyment  by  the  corporation  of  all  the  franchises 
connected  with  its  creation.  But  the  question  is,  what  the 
private  owner  of  the  fee  of  a  public  highway  may  do  on  the 
dedicated  land,  not  at  and  below,  but  at  and  above  the  na- 
tural surface  of  the  soil.  Whether  the  owner  of  the  fee  of 
the  road-bed  can,  without  any  purpose  to  improve  the  high- 
way, or  of  adding  to  its  most  convenient  use  in  the  mode 
its  nature  requires  as  a  public  passage  common  to  all  the 
people,  build  up  walls  on  both  sides  of  it  several  stories 
high,  shut  out  the  media  of  light  and  air  from,  and  hermet- 
ically seal  up  the  adjacent  buildings  put  there  since  its  con- 
struction. 

There  are,  it  appears  to  me,  two  classes  of  rights,  origi- 
nating in  necessity  and  in  the  exigencies  of  human  affairs, 


488       COURT  OF  ERRORS  AND  APPEALS. 

Barnett  v.  Johnson. 

springing  up  coeval  with  every  public  highway,  and  which 
are  recognized  and  enforced  by  the  common  law  of  all  civil- 
i/ed  nations.  The  first  relates  to  the  public  passage,  the 
second,  subordinate  to  the  first,  but  equally  perfect  and 
scarcely  less  important,  relates  to  the  adjoining  owners. 
Among  (he  latter  is  that  of  receiving  from  the  public  high- 
way light  and  air. 

In  the  first  place,  has  not  the  adjacent  owner  upon  the 
"  alta  rcgia  via"  the  ordinary  public  highway,  of  common 
right  the  privilege  of  receiving  from  it  light  and  air?  Uni- 
versal usage  is  common  law.  What  has  this  been  ?  Men  do 
not  first  build  cities,  and  then  lay  out  roads  through  them, 
but  they  first  lay  out  roads,  and  then  cities  spring  up  along- 
their  lines.  As  a  matter  of  fact  and  history,  have  not  all 
villages,  towns,  and  cities  in  this  country  and  in  all  others, 
now  and  at  all  times  past,  been  built  up  upon  this  assumed 
right  of  adjacency?  Is  not  every  window  and  every  door  in 
every  house  in  every  city,  town,  and  village  the  assertion  and 
maintenance  of  this  right? 

When  people  build  upon  the  public  highway,  do  they  in- 
quire or  care  who  owns  the  fee  of  the  road-bed  ?  Do  they 
act  or  rely  upon  any  other  consideration  except  that  it  is  a 
public  highway,  and  they  the  adjacent  owners?  Is  not  tin's 
a  right  of  universal  exercise  and  acknowledgment  in  all 
times  and  in  all  countries,  a  right  of  necessity,  without  which 
cities  could  not  have  been  built,  and  without  the  enforcement 
of  which  they  would  soon  become  tenantless?  It  is  a  right 
essential  to  the  very  existence  of  dense  communities.  What 
must  be  the  consequence  to  permit  the  accidental  owner  of 
a  part  or  the  whole  of  the  road-bed  to  wall  up  or  throw  a 
thin  curtain  in  front  of  the  adjacent  buildings,  or  by  any 
other  contrivance  shut  out  from  them  the  light  and  air?  Sup- 
pose the  owner  of  the  fee  should  try  the  experiment  to  the 
east  of  the  complainant's  house,  and  wall  up. Broad  street, 
would  it  be  tolerated  for  a  moment,  or  if  enforced,  would  it 
not  soon  turn  our  streets  into  tunnels,  and  seal  up  cities  in 
darkness  ? 


NOVEMBER  TERM,  1856.  489 


Barnett  v.  Johnson. 


If  it  be  said  that  there  are  no  cases  sustaining  this  right, 
so  there  are  none  establishing  this  right  to  light  and  air  at 
all  or  to  the  right  of  passage.  It  is  a  right  founded  in  such 
an  urgent  necessity  that  all  laws  and  legal  proceedings  take 
it  for  granted.  A  right  so  strong  that  it  protects  itself,  so 
urgent  that,  upon  any  attempt  to  annul  or  infringe  it,  it 
would  set  at  defiance  all  legislative  enactment  and  all  judi- 
cial decision.  It  is  tlie  mode  by  which  the  sovereign  power, 
in  the  exercise  of  its  eminent  domain,  since  land  has  become 
the  object  of  private  ownership,  " ab  imo  usque  ad  ccelum" 
at  the  same  time  that  it  creates  a  right¥  of  passage,  opens  up 
and  reserves  to  all,  as  the  increasing  density  of  the  popula- 
tion demands  it,  the  use  of  the  common  elements  of  light  and 
air. 

We  cannot  conclude  otherwise  than  that  a  right  so  essen- 
tial, so  universal  in  its  exercise  in  all  time  and  among  all 
nations,  exists,  not,  as  was  said  in  the  case  of  Gough  v.  Belt, 
2  Zab.  441,  by  a  common  law  local  to  New  Jersey,  but  by  a 
law  common  to  the  whole  civilized  world. 

If  this  right  exists  with  resnect  to  the  ordinary  highway, 
does  it  not  exist  with  respect  to  this  canal  company  ? 

It  might,  perhaps,  be  sufficient  to  say  to  this,  that  from 
time  immemorial  before  the  passage  of  this  charter,  the  ad- 
joining owner  upon  every  public  highway  had  of  common 
right  the  privilege  of  receiving  from  it  light  and  air,  and 
that  this  canal,  by  its  intrinsic  nature,  by  long  uses,  by  dedi- 
cation, and  by  express  statutory  enactment,  was  such  high- 
way. 

"Why  should  this  canal  be  an  exception  to  this  general 
rule?  Does  the  complainant's  receiving  from  it  light  and  air 
at  all  interfere  with  its  being  a  highway,  or  its  most  perfect 
and  full  operation,  or  its  police  regulations  in  the  slightest 
degree  impair  its  convenient  and  profitable  use?  Did  not 
the  legislature  intend  it  should  be  a  public  highway  in  the 
usual  acceptation  of  the  term?  Must  we  not  say  they  did, 
unless  it  appears  upon  the  face  of  the  charter  that  they  did 
not?  The  right  of  adjacent  owners  to  light  and  air  from 


490   COURT  OF  ERRORS  AND  APPEALS. 

Barnett  v.  Johnson. 

the  public  highway  was  at  the  time  of  the  enactment  of  this 
charter  as  well  known  as  universally  acknowledged  a  right 
as  necessary  to  the  public  interest  as  the  right  of  public  pas- 
sage itself.  Can  we  assume  that  the  legislature  meant  it 
should  be  a  highway  for  some  purposes  and  not  for  others? 

When  they  declared  it  such,  did  they  not  intend  that  it 
should  l>e  a  highway  to  all  parties  brought  in  relation  to  it? 
Can  we  assume  that  they  intended  it  should  be  a  highway  for 
the  purpose  of  having  the  immunities  of  the  highway,  and 
not  to  furnish  all  the  advantages  of  its  being  such?  That 
it  should  be  a  highway  in  being  protected  from  nuisance,  and 
not  a  highway  for  the  purpose  of  affording  breathing  room 
for  the  increasing  population  which  through  all  succeeding 
time  might  dwell  upon  its  banks. 

Our  turnpike  charters  generally  provide  for  taking  the 
entire  fee,  but  have  no  clause  declaring  them  to  be  highways. 
The  legislature  seem  to  have  thought  that  their  nature  suffi- 
ciently declared  them  to  be  such. 

In  the  charters  of  our  canals,  rail  and  plank  roads,  they 
are  generally  declared  to  be  such.  Are  we  to  declare,  with 
respect  to  all  these,  that  they  are  highways  only  for  the  pur- 
pose of  public  passage,  and  that  the  accidental  owner  of  the 
fee  of  the  road-bed,  whether  such  owner  be  the  company  or 
a  private  individual,  can  in  all  these  cases,  for  no  purpose 
connected  with  the  public  right  of  passage,  shut  up  the  doors 
and  windows  of  all  the  adjacent  houses  "ex  m  termini?" 
When  a  strip  of  land  is  declared  a  public  highway,  the  ad- 
joining owner  has  a  right  to  light  and  air  from  it.  The 
column  of  light  and  air  above  the  road-bed,  whether  of  land 
or  water,  is  as  much  part  of  the  highway  as  the  road-bed 
itself.  Take  them  away,  and  there  would  be  left  no  public 
passage.  By  its  being  declared  a  highway  by  the  sovereign 
power,  the  light  and  air  above  it  become  again  the  common 
property  of  all,  which  all  may  breathe  and  use  whenever 
they  may  legally  touch  it,  whether  in  the  road  or  along  its 
sides.  What  good  reason  exists  why  this  kind  of  highway 
should  differ  in  this  respect  from  the  ordinary  ones  ?  This 


NOVEMBER  TERM,  1856.  491 


Barnett  v.  Johnson. 


right  to  receive  light  and  air  is  subordinate  to  every  purpose 
connected  with  the  full  enjoyment  of  public  passage.  The 
same  necessity  exists  for  it  here  as  in  that  of  the  ordinary 
highway.  It  is  the  common  understanding  of  the  public.  A 
very  large  proportion  of  the  towns  and  villages  in  the  state 
are  built  up  along  them.  The  facilities  they  afford  soon  give 
rise  to  all  kinds  of  improvement  along  their  lines;  very  large 
amounts  of  property  soon  become  invested  upon  the  assump- 
tion of  tthese  rights,  and  they  are  increasing  in  an  increasing 
ratio  year  by  year.  Can  we  say  that  it  was  not  to  secure 
these  very  interests,  among  others,  that  the  legislature  de- 
clared that  they  should  be  esteemed  public  highways  ?  No 
harm  can  arise,  as  I  can  see,  from  recognizing  the  existence 
of  this  principle  as  regards  all  our  highways,  those  built  by 
corporations  as  well  as  those  built  by  the  state.  It  does  not 
interfere  with,  for  it  is  subordinate  to  the  exercise  by  the  cor- 
poration of  all  its  corporate  powers  and  the  enjoyment  of  all 
its  corporate  rights.  It  yields  to  the  right  of  passage  and 
to  all  rules  and  regulations  made  "bonafide"  for  its  greater 
safety  and  convenience.  The  adjacent  owners  will  not  be 
perplexed  with  questions  as  to  who  owns  the  road-bed,  or 
whether  this  one  owns  half,  or  a  quarter,  or  the  whole.  Each 
one  gets  what  he  is  entitled  to,  viz.  the  light  and  air  from 
the  whole  highway,  and  not  to  a  half,  or,  as  would  be  the  case 
with  this  complainant  if  he  had  to  depend  solely  upon  his 
owning  the  gore,  an  infinitesimal  portion  of  it. 

In  case  the  canal,  turnpike,  or  railroad  ceases  to  be  such 
the  public  highway  still  continues.  The  streets,  villages,  and 
towns  that  have  been  built  up  along  their  lines  cannot  be 
sealed  up  in  darkness  by  whoever  may  be  the  accidental 
owner  of  the  road-bed  until  it  is  legally  vacated.  When 
streets  and  villages  have-been  built  up  along  a  public  high- 
way the  right  to  light  and  air  from  it  becomes  vested,  and 
even  the  legislature  would  have  no  more  right  to  deprive 
them  of  it  without  compensation  than  they  would  to  draw 
off  the  water  from  a  navigable  stream.  The  legislature 
have  declared  this  .canal  a  public  highway.  Why  should  we 


492       COURT  OF  ERRORS  AND  APPEALS. 

Barnett  v.  Johnson. 

abridge  the  term  of  its  accustomed  force?  Why  annul  at 
one  sweep,  no\v  and  for  all  time  to  come,  the  right  to  build- 
ing front  and  breathing  room  upon  all  the  turnpikes,  canals, 
plank  and  railroads  in  the  state,  and  give  to  whoever  may 
be  the  accidental  owner  of  the  fee  the  right  to  shut  up  in 
darkness  all  the  structures  along  their  lines? 

I  am  of  opinion  that  the  Morris  canal  is  a  public  highway, 
declared  so  by  the  legislature,  among  other  things,  to  create 
and  protect  these  rights  of  adjacent  owners,  and  that  the 
complainant,  as  such,  has  of  common  right  the  privilege  of 
receiving  from  it  light  and  air,  and  consequently  is  entitled 
to  his  injunction. 

This  makes  it  unnecessary  to  consider  the  complainant's 
third  ground,  viz.  that  the  company,  as  owners  of  the  road-bed, 
have  dedicated  it,  and  that  thence  springs  an  implied  con- 
tract that  he  will  not  .shut  off  the  light  and  air.  This  ap- 
pears to  me- but  a  different  statement  of  the  right  of  adja- 
cency. The  complainant  can  only  raise  the  contract  upon 
the  existence  of  his  right  as  an  adjacent  owner.  He  has  no 
interest  in  the  road-bed  ;  and  if  he  has  no  rights  as  adjacent 
owner,  the  law  could  raise  no  implied  contract  that  those 
rights  should  not  be  disturbed.  His  right  is  still  that  he 
owns  the  land  adjoining  upon  the  highway,  and  does  not  de- 
pend upon  who  owns  the  whole  or  fractious  of  the  road-bed, 
or  how  it  was  made  a  highway,  whether  by  private  dedica- 
tion or  by  public  authority,  but  upon  the  simple  fact  that  it 
is  a  public  highway,  and  he  the  adjacent  owner. 

The  order  of  the  Chancellor  dissolving  the  injunction 
was  reversed  by  the  following  vote: 

For  ajfinnancc — None 

For  reversal — Judges  ARROWSMITII,  HAINES,  POTTS,  VA- 

J.EXTIXE,  CORNELISON,  HtJYLER,  RlSLEY,  VREDEXI5URGH, 

GREEN  (Chief  Justice),  OODEN,  RYERSON  and  WILLS—  14. 


NOVEMBER  TERM,  1863.  493 

Norris  v.  Executors  of  John  B.  Thomson. 

The  cause  was  thereupon  remitted  to  the  Court  of  Chan- 
cery, where  an  order  was  made  for  a  perpetual  injunction 
against  the  plaintiff. 

NOTE. — The  reporter  is  indebted  to  James  "Wilson,  esq., 
for  a  copy  of  the  above  opinion,  which,  although  pronounced 
at  the  term  of  November,  1856,  has  never  before  been  printed, 
and  it  was  considered  of  sufficient  interest  and  importance  to 
justify  its  publication  at  this  time. 

CITED  in  Stevens  v.  Paterson  and  Newark  R.  R.  Co.,  5  Vroom  564. 


CAROLINE  NORRIS,  ADELINE  THOMSON,  and  others,  appel- 
lants, and  THE  EXECUTORS  OP  JOHN  R.  THOMSON  and 
others,  respondents. 

[Decided  November  Term,  1863.] 

A  testator,  by  his  will,  bequeaths  to  his  wife  specifically  all  that  portion 
of  his  personal  estate  commonly  known  as  goods  and  chattels,  such  as 
plate,  furniture,  horses,  carriages,  &c.,  and  immediately  after  gives  and 
devises  "  all  the  rest  and  residue  of  my  real  and  personal  estate  "  unto 
certain  persons  in  trust  for  various  uses  and  purposes,  among  which  are, 
to  give  to  each  of  five  legatees  named,  two  hundred  and  fifty  shares  of 
certain  stock  which  testator  had  at  the  making  of  his  will  and  at  the 
time  of  his  death.  And  the  question  being  which  of  the  bequests  of  the 
shares  of  stock  were  specific  or  general  bequests — it  was  held 

That  it  seems  to  be  conceded  that  if  a  testator  bequeaths  to  a  person  a  cer- 
tain number  of  cows  or  sheep  or  shares  of  stock  it  is  a  general  legacy; 
but  if  he  add  the  word  my  cows,  my  sheep,  or  my  shares  of  stock,  it  is  a 
specific  legacy,  although  in  both  cases  he  may  be,  at  the  time  of  making 
the  will,  and  thence  to  his  death,  the  owner  of  the  number  of  cows, 
sheep,  or  shares  mentioned  in  the  will. 

In  this  case  the  testator,  having  otherwise  disposed  of  all  his  personal  pro- 
perty except  the  stocks  and  bonds,  concerning  which  this  question  arises, 
and  there  being  no  other  personal  estate  but  his  stocks  and  bonds  on 
which  the  residuary  bequests  could  operate,  his  describing  such  residue 
as  "  my  personal  estate  "*  is  equivalent  to  saying  my  stocks  or  my  bonds, 
and  makes  the  legacies  specific,  and  not  general. 

VOL.  n.  2  H 


494       COURT  OF  ERRORS  AND  APPEALS. 

Norris  v.  Executors  of  John  R.  Thomson. 
This  was  an  appeal  from  the  decree  of  the  Chancellor. 

A.  0.  Zabriskie,  for  appellants. 
Bradley,  for  respondents. 

The  opinion  of  the  court  was  delivered  by  Judge  Ogden, 
but  the  reporter  has  been  unable  to  obtain  a  copy  of  it.  The 
following  opinion  was  delivered  by  Judge  Van  Dyke,  who 
voted  with  the  majority  of  the  court  to  reverse  the  decision 
of  the  Chancellor. 

VAN  DYKE,  J.  The  question  presented  to  the  court  be- 
tween certain  of  the  legatees  under  the  will  of  John  R. 
Thomson,  deceased,  and  the  executors  of  the  said  will  is, 
whether  the  legacies  in  question  are  specific  or  general. 

By  his  will,  the  testator  first  bequeathed  to  his  wife,  spe- 
cifically, all  that  portion  of  his  personal  estate,  commonly 
known  as  goods  and  chattels,  such  as  his  plate,  furniture, 
horses,  carriages,  &c. 

Immediately  after  this  he  declares  as  follows :  "  All  the 
rest  and  residue  of  my  real  and  personal  estate,  of  whatever 
nature  or  kind,  or  wherever  situate,  I  give,  devise,  and  be- 
queath unto  John  M.  Read,  Charles  Macalester,  and  Alexan- 
der H.  Thomson,  their  heirs,  executors,  and  administrators, 
in  trust  for  the  following  uses  and  purposes  : 

First.  To  give  to  my  sister,  Mrs.  Caroline  Norris,  two 
hundred  and  fifty  shares  of  the  capital  stock  of  the  New 
York  and  Baltimore  Transportation  line ;  to  my  sister,  Ade- 
line Thomson,  two  hundred  and  fifty  shares  of  the  capital 
stock  of  the  said  line;  to  my  sister,  Amelia  Read,  wife  of 
the  Hon.  John  M.  Read,  two  hundred  and  fifty  shares  of  the 
capital  stock  of  the  said  line;  to  my  nephew,  Alexander 
Hamilton  Thomson,  one  hundred  and  twenty-five  shares  of 
the  capital  stock  of  the  said  line,  and  to  my  niece,  Elizabeth 
Norris,  one  hundred  and  twenty-five  shares  of  the  capital 
stock  of  the  said  line." 


NOVEMBER  TERM,  1863.  495 

Norris  v.  Executors  of  John  R.  Thomson. 

He  then  gives  to  five  of  his  friends  five  bonds,  of  $1000 
each,  of  the  Delaware  and  Raritan  Canal  Company  and  Cam- 
den  and  Amboy  Railroad  and  Transportation  Company,  re- 
deemable in  1889,  one  to  each  legatee. 

He  then  gives  an  annuity  of  $500  during  life  to  his  brother, 
Edward  R.  Thomson. 

He  then  directs  that,  from  the  income  of  the  residue  of 
his  estate,  there  shall  be  paid  to  his  wife  the  sum  of  $10,000 
annually,  with  the  power  to  devise  and  bequeath  the  principal 
to  certain  of  his  relatives,  and  also  gives  to  her  the  disposition 
of  the  surplus  of  such  income,  if  any  there  shall  be. 

It  is  conceded  by  the  pleadings  that  the  testator  left  suffi- 
cient estate  to  answer  all  the  requirements  of  the  said  will. 

It  is  also  admitted  by  the  pleadings  and  the  inventory  that 
the  testator,  at  the  time  of  making  his  will,  and  from  thence 
to  the  time  of  his  death,  was  the  owner  of  the  shares  of  stock 
and  the  bonds  mentioned  in  his  will,  and  more  of  the  same 
kinds. 

The  question  now  arises  whether  these  bequests  of  the 
shares  of -stock  and  the  bonds  are  specific  or  general  legacies, 
or  rather  the  question  is,  whether  it  was  the  intention  of  the 
testator  to  make  them  general  or  specific.  We  have  but  little 
difficulty  in  understanding  what  constitutes  a  specific  legacy, 
and  what  a  general  one,  but  from  the  peculiar  language,  so 
often  made  use  of  in  wills,  the  courts  have  had  great  difficulty 
in  determining  \\hether  it  meant  the  one  thing  or  the  other; 
and  while  the  judicial  decisions  on  the  question  have  been  very 
numerous,  the  one  way  and  the  other,  but  very  few  settled 
rules  can  be  gathered  from  them. 

It  seems  to  be  conceded,  that  if  a  testatpr  bequeaths  to  a 
person  a  certain  number  of  cows,  or  sheep,  or  shares  of  stock, 
it  is  a  general  legacy,  but  if  he  add  the  word  my  cows,  my 
sheep,  or  my  shares  of  stock,  it  is  a  specific  legacy,  although 
in  both  cases  he  may  be  at  the  time  of  making  the  will,  and 
thence  to  the  time  of  his  death,  the  owner  of  the  number  of 
cows  and  sheep  and  shares  of  stock  mentioned  in  the  will. 
This  seems  to  be  at  first  sight  a  rather  remarkable  distino- 


496      COURT  OF  ERRORS  AND  APPEALS. 

Norris  r.  Executors  of  John  R.  Thomson. 

tion,  but  such  seems  to  be  the  rule  adopted  by  the  courts, 
and  by  the  aid  of  which  each  tribunal  has  to  grope  its  way 
through  the  unintelligible  language  so  often  found  in  wills. 
Hence  another  rule,  admitted  to  be  universal,  is  always  to  be 
resorted  to  in  solving  these  difficult  questions,  and  that  is, 
what  was  the  real  intention  of  the  testator.  This,  if  it  can 
be  ascertained,  is  always  to  govern. 

In  the  case  before  us,  if  we  take  the  will  itself,  together 
with  such  other  evidence  and  circumstances  as  we  are  per- 
mitted to  take  into  consideration,  it  seems  impossible  to  con- 
clude that  the  testator  intended  these  to  be  general  legacies, 
with  all  the  incidents  which  belong  to  that  kind  of  bequest ; 
for  instance,  if  this  be  a  general  legacy,  the  executors  would 
have  been  at  liberty,  at  the  death  of  the  testator,  if  these 
shares  were  then  worth  in  the  market  $100  per  share,  to  sell 
them  at  that  price,  and  at  the  end  of  a  year,  when  they  may 
have  fallen  to  $20  per  share,  purchase  them  again,  and  hand 
them  over  to  the  legatees  in  their  reduced  condition,  and  turn 
the  difference  in  a  wholly  different  direction.  This  the  testa- 
tor could  never  have  intended. 

But  we  need  only  add  the  fact  of  the  possession  of  these 
stocks  and  bonds  by  the  testator  at  the  time  of  making  the 
will,  and  thence  to  the  time  of  his  death,  to  the  language  of 
the  will  itself  to  ascertain  the  intention  of  the  testator. 
"When  he  devised  and  bequeathed  all  the  residue  of  his  estate 
to  the  individuals  named  as  trustees,  having  previously  dis- 
posed of  all  his  goods  and  chattels  to  his  wife,  he  had  nothing 
left  of  personal  property  but  his  stocks  and  bonds.  In  that 
devise  and  bequest  he  does  call  it  his  estate,  real  and  personal, 
and  when  he  applied  that  language  to  his  personal  estate  he 
must  have  intended  to  apply  it  to  his  stocks  and  bonds  ex- 
clusively, for  ^he  had  nothing  else  to  which  it  could  apply ; 
and  it  is  equivalent  to  saying,  I  bequeath  my  stocks  and 
bonds  now  in  my  possession,  to  these  gentlemen,  who  are  to 
be  my  executors,  to  distribute  and  hand  over  to  my  legatees, 
at  my  death,  according  to  the  directions  of  my  will. 

I  am  aware  that  these  individuals  are  made  trustees  of  the 


NOVEMBER  TERM,  1863.  497 

Norris  v.  Executors  of  John  R.  Thomson. 

property  thus  committed  to  them,  and  this  was  quite  proper, 
if  not  necessary,  for  the  great  bulk  of  his  estate  was  to  be 
held  by  them  during  the  life  of  Mrs.  Thomson,  and  to  con- 
stitute them  trustees  with  regard  to  this  part  of  the  estate 
was  natural  and  usual ;  but  they  are  also  made  executors  of 
his  will,  and  it  was  not  in  the  character  of  trustees,  but  as 
executors,  that  they  were  to  take  charge  of  the  legacies  now 
under  consideration,  and  distribute  them  among  the  legatees. 
They  could  not  retain  them  more  than  a  year  at  most, 
whether  they  be  specific  or  general,  and  they  deal  with  them 
the  same  as  all  other  executors  deal  with  such  legacies,  just  as 
if  there  had  been  110  other  property  confided  to  trustees  by 
the  will. 

The  true  interpretation,  then,  of  these  clauses  in  the  will 
is,  that  he  gives  to  his  executors  these  shares  of  stock  and 
these  bonds,  which  he  then  owned,  and  which  he  then  de- 
clares to  be  his  stocks  and  bonds,  to  be  by  them  distributed 
and  handed  over  to  the  legatees  in  the  manner  directed  by 
the  will.  This  is  what  the  testator  unquestionably  intended. 
lie  simply  made  his  executors  his  agents,  as  is  always  the 
case  with  specific  legacies,  to  do  this  particular  thing,  that 
is,  to  pass  over  the  particular  thing  specified  and  bequeathed, 
whether  cows,  sheep,  or  stock,  to  the  person  or  j>ersons  for 
whom  they  are  intended.  This  makes  the  legacies  specific, 
and  not  general.  In  this  way,  and  in  no  other,  can  I  read 
the  will. 

The  decision  of  the  Chancellor  was  reversed  by  the  follow- 
ing vote : 

For  affirmance — Judges  COMBS,  ELMER,  WHELPLEY — 3. 

For  reversal — Judges  CORNELISOX,  FORT,  KENNEDY,  OG- 
DEN,  VAN  DYKE,  VREDENBURGH — 6. 

VIDE  Norris  v.  Thomsons  Frfrs,  1  C.  E.  Gr.  218,  and  1  C.  E.  Or.  542,  and 
4  C.  E.  Gr.  307.  Vide  Thomson's  JEtVs  v.  Norris,  4  C,  E.  Gr.  575,  and  5  C. 
E.  Gr.  489. 


CASES  DETERMINED 


IN  THE 


COURT  OF  ERRORS  AND  APPEALS 

FROM  MARCH  TERM,  1351,  10  NOVEMBER  TERM,  1863,  INCLUSIVE, 


Ei   SOME  OF  WHICH  NO  OPINIONS  WERE  DELIVERED,  AND  IN  THE  OTHERS 

OPINIONS  WERE  READ,   BUT  THE  REPORTER  HAS  BEEN 

UNABLE  TO  OBTAIN  THEM. 


Between  JEREMIAH  McKiBBiN,  appellant,  and  BENJAMIN  H. 
BROWN,  respondent. 

[Decided  at  March  Term,  1861.] 
This  case  is  reported  in  Chancery,  in  1  McCarter  13. 

P.  L.  Voorhees  and  Browning,  for  appellant. 
Beasley,  for  respondent. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

For  affirmance — Judges  BROWN,  COMBS,  CLAWSON,  HAINES, 
OGDEN,  SWAIN,  VREDENBURGH,  WHELPLEY,  WOOD — 9. 

For  reversal — CoRNELisoN,  KENNEDY,  VAN  DYKE — 3. 

CITED  in  Potto  v.  Whilchead,  8  C.  E.  Gr.  514. 

498 


JUNE  TERM,  1861,  MARCH  TERM,  1862.      499 


Warwell  v.  Taylor,  and  Brown  v.  Brown. 


Between   NEWTON   M.  WARWELL,  appellant,   and   MOSES 
TAYLOR,  respondent. 

[Decided  at  June  Term,  1861.] 
Hayes  and  Bradley,  for  appellant. 
L.  C.  Grover  and  Frelinghuysen,  for  respondent. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

For  affirmance — Judges  BROWN,  COMBS,  CORNELISON, 
KENNEDY,  OGDEN,  RISLEY,  SWAIN,  VAN  DYKE,  VREDEN- 
BURGH — 9. 

For  reversal — None. 


Between  HARRIET  BROWN,  appellant,  and  OTIS  H.  BROWN, 
respondent.* 

[Decided  at  March  Term,  1862.] 

This  case  is  reported  in  Chancery,  in  1  McCarter  78. 
It  was  argued  by  Jacob  Weart,  for  appellant,  ex  parte. 

The  decree  of  the  Chancellor  was  reversed  by  the  follow- 
ing vote : 

For,  reversal — Judges  BROWN,  COMBS,  ELMER,  HAINES, 
KENNEDY,  OGDEN,  VAN  DYKE,  VREDENBURGH,  WHELP- 
LEY,  WOOD — 10. 

For  affirmance — None. 

*The  reporter  regrets  that  he  has  been  unable  (after  a  diligent  search) 
to  obtain  the  very  elaborate  opinion  which  was  prepared  by  Chief  J  ustice 
Whelpley,  and  read  by  him  in  pronouncing  the  judgment  of  the  court 
in  this  case. 


500   COURT  OF  ERRORS  AND  APPEALS. 


German  Evangelical  Church  of  Newark  v.  Magie,  and  Kille  ».  Campion. 


Between  THE  GERMAN  EVANGELICAL  DUTCH  CHURCH  OP 
NEWARK,  appellants,  and  SETH  W.  MAGIE,  respondent. 

[Decided  at  March  Term,  1862.] 

This  case  is  reported  in  Chancery,  in  2  Beasley  77. 
C.  Parker,  for  appellant. 
JRunyon,  for  respondent. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow 
ing  vote : 

For  affirmance — Judges  BROWN,  COMBS,  CORNELISON, 
ELMER,  HAINES,  KENNEDY,  OGDEN,  VREDENBURGH, 
WHELPLEY,  WOOD — 10. 

For  reversal — Judge  VAN  DYKE — 1. 


Between   ROBERT  K.   KILLE,  appellant,  and  JOSEPH  H. 
CAMPION,  respondent. 

[Decided  at  November  Term,  1862.] 
This  case  is  reported  in  Chancery,  in  1  McCarter  229. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

Far  affirmance — Judges  BROWN,  COMBS,  CORNELISON, 
ELMER,  HAINES,  OGDEN,  SWAIN,  VREDENBURGH,  WHELP- 
LEY,  WOOD — 10. 

For  reversal — Judge  KENNEDY — 1. 


MARCH  TERM,  1863.  501 

Hillyer  v.  Schenck,  Kaighn  v.  Fuller,  and  Manners  v.  Bentley. 

Between  MARY  HILLYER,  appellant,  and  JESSE  F.  SCHENCK, 
respondent. 

This  was  an  appeal  from  the  decree  of  the  Ordinary.    See 
ante,  page  398. 

The  court,  at  November  term,  1862,  made  the  following 
order  in  this  case,  without  a  division  : 

.  "  It  is  ordered  that  this  cause  be  dismissed  from  the  files 
of  this  court,  with  costs,  for  want  of  jurisdiction  by  this  court 
of  the  case." 

CITED  in  Harris  v.  Vanderveer's  Etfrs,  6  C.  E.  Gr.  438-455 ;  Morgan  v. 
Rose,  7  C.E.  Gr.  593. 

Between  WILLIAM  R.  KAIGHN,  appellant,  and  MARIA  M. 
FULLER,  respondent. 

[Decided  at  March  Term,  1863.] 

This  case  is  reported  in  Chancery,  in  1  McCarter  418. 
The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote  (the  court  being  equally  divided) : 

For  affirmance — Judges  BROWN,  COMBS,  VREDENBTTRGH, 
WHELPLEY,  WOOD — 5. 

For  reversal — Judges  CORNELISON,  HAINES,  OGDEN,  FORT, 
SWAIN — 5. 

In  this  case  Chief  Justice  WHELPLEY  read  an  opinion  for 
affirmance,  and  Judge  OGDEN  read  an  opinion  for  a  reversal. 


Between  DAVID  S.  MANNERS,  appellant,  and  PETER  BENT- 
LEY,  respondent. 

[Decided  at  March  Term,  1863.] 

Opinion  by  Justice  ELMER,  for  affirmance. 

The  decree  of  the  Chancellor  was  affirmed  unanimously. 


502       COURT  OF  ERRORS  AND  APPEALS. 

Muir  v.  Butler,  and  Walker  v.  Atwater. 

Between  JONATHAN  F.  MUIR,  appellant,  and  THE  NEW- 
ARK SAVINGS  INSTITUTION  and  ALFRED  B.  BUTLER,  re- 
spondents. 

[Decided  at  June  Term,  1863.] 
Zabriskie,  for  appellant. 

Hubbett  and  Parker,  for  respondents. 

/ 
Opinion  delivered  by  Justice  ELMER. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow 
ing  vote : 

For  affirmance — Judges  BROWN,  COMBS,  CORNELISON,  EL- 
MER, FORT,  HAINES,  KENNEDY,  OGDEN,  VREDENBURGH, 
WALES,  WOOD — 11. 

For  reversal — None. 
VIDE  opinion,  1  C.  E.  Gr.  537. 


Between  FREDERICK  W.  WALKER,  appellant,  and  JAMES  C. 
ATWATER,  respondent. 

[Decided  at  November  Term,  1863.] 
Bradley,  for  appellant. 

Zabriskie,  for  respondent. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

For  affirmance — Judges  COMBS,  CORNELISON,  FORT, 
HAINES,  OGDEN,  VAN  DYKE,  VREDENBURGH,  WHELPLEV, 
WALES,  WOOD— 10. 

For  reversal — None. 


NOVEMBER  TERM,  1863.  503 

Congar  v.  Davis,  and  Van  Duyne  v.  Van  Duyne. 

Between  WRIGHT  F.  CONGAR,  appellant,  and  FRANCIS  DAVIS 

and  others,  respondents. 
[Decided  at  November  Term,  1863.] 
McDonald,  for  appellant. 
Keasbey,  for  respondents. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

For  affirmance — Judges  COMBS,  CORNELISON,  ELMER, 
FORT,  HAINES,  KENNEDY,  OGDEN,  VAN  DYKE,  VREDEN- 
BURGH,  WHELPLEY,  WOOD — -11. 

For  reversal — Xone. 


HIRAM  VAX  DUYNE,  appellant,  and  JAMES  M.  VAN  DUYNE, 
respondent. 

[Decided  at  November  Term,  1863.] 

This  case  is  reported  in  Chancery,  in  1  McCarter  397. 

The  court  having  in  that  cause  decreed,  among  other 
things,  that  the  appellant  was  "  not  entitled  to  the  use  of,  or 
any  title,  interest,  or  estate  in  the  lands  mentioned  and  de- 
scribed in  the  second  and  third  clauses  of  the  said  will  of 
Martin  J.  Van  Duyne,  or  in  any  part  thereof,  by  virtue  of 
any  devise  made  to  him,  or  to  or  for  his  use,  in  and  by  the 
said  second  or  third  clause  of  said  will." 

The  appellant  appealed  from  that  part  of  the  Chancellor's 
decree. 

Vanatta,  for  appellant. 

Chandler  and  Bradley,  for  respondent. 

The  part  of  the  Chancellor's  decree  appealed  from  was  re- 
versed by  the  following  vote  : 

For  affirmance — Judges  ELMER  and  VREDENBURGH — 2. 

For  reversal — Judges  CORNELISON,  FORT,  HAINES,  KEN- 
NEDY, OGDEN,  VAN  DYKE,  WHELPLEY — 7. 


INDEX. 


ACCOUNT. 
See  JURISDICTION,  1,  3 ;  ASSIGNMENT,  1  to  5. 

ADULTEEY. 
See  DIVORCE. 

ADVERTISEMENT. 

See  NOTICE. 

AGREEMENT. 

1.  The  complainants  have,  by  virtue  of  their  contract  with  the  state  of 
New  Jersey,  the  exclusive  franchise  of  transporting  passengers  and 
freight,  by  railway,  across  the  state,  between  the  cities  of  New  York 
and  Philadelphia,  and  are  entitled  to  the  protection  of  a  court  of  equity 
in  the  enjoyment  of  that  franchise.    Del.  &  Rar.  Canal  and  C.  &  A.  R. 
R.  Go's  v.  Rar.  &  Del.  Bay  R.  R.  Co.,  14 

2.  The  incorporation  of  the  Camden  and  Atlantic  Railroad  Company  to 
construct  a  railroad  across  the  state  from  Camden  to  the  sea,  and  tho 
incorporation  of  the  Raritan  and  Delaware  Bay  Railroad  Company  to 
construct  a  railroad  from  Raritan  Bay  to  Cape  Island,  were  no  viola- 
tion, on  the  part  of  the  state,  of  its  contract  with  complainants.        ib. 

3.  The  junction  of  these  two  railroads  at  their  necessary  and  legitimate 
points  of  intersection,  so  as  to  form,  with  the  aid  of  steamboats  on  the 
Delaware  river  and  Raritan  Bay,  a  continuous  line,  which,  by  possi- 
bility, may  be  used  for  the  transportation  of  passengers  and  merchan- 
dise across  the  state,  between  the  cities  of  New  York  and  Philadelphia, 
constitutes  no  violation  of  the  complainants'  rights.  ib. 

4.  There  being  a  legitimate  purpose  for  what  these  roads  may  be  con- 
structed and  used,  and  for  which  a  junction  between  them  may  be 
formed,  the  defendants  cannot  be  restrained  from  effecting  such  junc- 
tion merely  because  it  may  be  perverted  to  an  unlawful  purpose.      ib. 

5.  The  fact  that  either  of  said  roads,  or  the  connection  between  them,  'a 
being  constructed  without  lawful  authority,  constitutes  no  ground  for 
equitable  relief  against  said  construction  at  the  instance  of  the  com- 
plainants, unless  their  rights  will  be  thereby  violated.  ib. 

6.  The  answers  of  the  defendants  held  to  be  a  full  denial  of  the  equity 
of  the  complainants'  bill,  and  although  such  unauthorized  construction 
and  connection  of  the  roads  may  afford  evidence  of  a  fraudulent  de- 
sign to  violate  the  rights  of  the  complainants,  it  is  not  sufficient,  on  a 

505 


50G  INDEX. 

motion  for  a  preliminary  injunction,  to  overcome  the  answers  of  the 
defendants.  ib. 

7.  No  duties  imposed  upon  the  defendants  by  their  charters,  and  no  con- 
tract into  which  they  may  have  entered  with  third  persons,  or  with 
each  oilier,  can  justify  any  violation  of  complainants'  rights,  or  afford 
protection  against  the  consequences  of  such  violation.  ib. 

See  JURISDICTION,  1,  2,  3;  SPECIFIC  PERFORMANCE,  1  to  5. 

ALIMONY. 
See  DIVORCE,  7. 

APPEAL. 

1.  An  appeal  will  lie  from  order  of  Orphans  Court  fixing  the  amount  of 
executor's  commissions.     Anderson  v.  Jierry,  233. 

2.  This  is  a  constitutional  right,  and  the  legislature  has  not  the  power  to 
abridge  or  take  it  away.  ib. 

3.  But  the  Prerogative  Court  will  not  exercise  its  jurisdiction  to  review 
the  decision  of  the  Orphans  Court  in  a  matter  of  this  kind  except  in 
case  of  a  manifest  error  in  judgment.  ib 

4.  The  right  of  appeal  from  a  sentence  or  decree  of  the  Orphans  Court, 
rejecting  or  admitting  a  will  to  probate,  is  by  the  statute  made  condi- 
tional upon  its  being  demanded  within  thirty  days  after  the  sentence 
or  decree  of  the  Orphans  Court.     Hillyer  v.  Schenck,  398 

5.  The  thirty  days  are  to  be  computed  not  from  the  time  the  decision  is 
announced,  but  from  the  time  the  decree  was  reduced  to  writing,  signed 
and  filed,  and  entered  upon  the  minutes  of  the  court.  ib. 

6.  The  statute  requiring  the  decrees  of  the  Orphans  Court  to  be  signed  by 
the  presiding  judge  (Nix.  Diy.  588,  $  63,)  was  designed  rather  to  regu- 
late the  mode  in  which  the  decree  should  be  authenticated,  and  its  ex- 
istence verified,  than  to  prescribe  an  essential  requisite  to  the  existence 
or  validity  of  the  decree.     The  decree,  having  been  duly  made  and 
filed,  may  be  subsequently  authenticated  by  the  signature  of  the  pre- 
siding judge.  ib. 

7.  The  demand  and  filing  of  the  appeal  in  the  court  below,  and  not  the 
petition  of  appeal  in  this  court,  is  the  demand  of  appeal  intended  by 
the  act,  and  which,  alone,  is  required  to  be  made  within  thirty  days.    ib. 

8.  The  time  of  filing  the  petition  of  appeal  is  regulated  by  rule  of  court, 
and  whenever  the  rule  has  not  been  complied  with,  the  court  may,  in 
the  exercise  of  its  discretion,  release  the  party  from  the  effects  of  his 
laches.  ib. 

9.  That  the  appellant,  by  her  proctor,  immediately  on  the  decision  being 
announced  by  the  court,  and  before  the  decree  was  framed  or  its  pre- 
cise terms  settled,  gave  notice  orally,  in  the  presence  of  the  adverse 
proctor,  that  she  intended  to  appeal  from  said  decision,  is  not  a  suffi- 
cient demanding  of  an  appeal.  ib. 

10.  It  seems  that  a  mere  oral  demand  of  appeal,  without  any  instrument 
of  appeal  being  prepared,  or  entry  made  on  the  minutes,  or  some  order 
made  by  the  court,  is  not,  according  to  the  practice  in  this  state,  a  law- 
ful demand  of  an  appeal.  ib. 


INDEX.  507 

11.  An  order  made  by  the  Orphans  Court  more  than  thirty  days  after  the 
decree  was  signed  and  filed,  reciting  that  an  appeal  had  been  demanded 
in  open  court,  and  directing  that  the  said  appeal  be  entered,  and  that 
return  be  made  therein  according  to  law  and  the  practice  of  the  court, 
is  not  conclusive  that  an  appeal  had  been  duly  demanded,  when  it 
otherwise  appears  that  the  only  demand  of  appeal  actually  made  was  an 
oral  declaration  of  the  appellant's  proctor  that  he  intended  to  ap- 
peal, ib. 

12.  The  principle  is  of  universal  application,  that  the  validity  of  an  appeal 
is  to  be  decided  by  the  appellate  tribunal.  ib. 

13.  Where  the  court  below  met  by  formal  appointment  to  decide  the  cause, 
and  announced  the  decision  in  the  hearing  of  both  proctors,  and  im- 
mediately and  publicly  adjourned  in  the  presence  of  the  proctor  of  the 
aggrieved  party  to  an  early  day,  that  the  decree  might  be  formally 
prepared  for  signature,  and  again  met  on  that  day,  and  signed  the  de- 
cree, which  was  immediately  placed  on  file,  and  there  remained  until 
after  the  time  for  appealing  had  expired,  no  actual  notice  of  the  signing 
of  the  decree  was  necessary,  nor  is  it  material  whether  the  party 
aggrieved  or  her  proctor  was  actually  in  court  when  the  decree  was 
signed.     Parties  are  bound  to  take  notice  of  the  acts  and  decrees  of 
the  court  regularly  made. 

14.  If,  however,  the  court  had  met,  and  made  the  decree  privily,  or  without 
full  notice  to  the  appellant,  or  if  the  fact  of  the  decree  had  been  inten- 
ticlnally  concealed  from  the  proctor  of  the  party  aggrieved,  or  its  ex- 
istence denied,  or  any  artifice  or  fraudulent  practice  resorted  to  to  de- 
prive him  of  the  opportunity  of  appeal,  the  right  of  appeal  would  not 
have  been  lost.  ib. 

15.  The  Court  of  Errors  and  Appeals  have  no  -jurisdiction  of  an  appeal 
from  a  decree  of  the  Ordinary,  rendered  in  the  Prerogative  Court,  on 
appeal  from  a  decree  of  the  Orphans  Court.     Hillyer  v.  Schenck,    501 

See  ORPHANS  COURT,  1, 2. 

ASSETS. 

}  B.  C.,  being  indebted  to  the  complainant,  died  without  personal  estate, 
but  seized  of  a  lot  of  land  in  the  city  of  Newark,  which,  by  his  will,  he 
devised  to  his  infant  son.  After  his  death,  the  lot  was  taken  by  the 
city  of  Newark  for  a  street,  and  its  value  was  paid  into  the  hands  of 
the  city  treasurer,  according  to  a  provision  of  the  city  charter. 
On  a  bill  filed  by  the  complainant  to  obtain  satisfaction  of  his  debt 
out  of  the  money  in  the  hands  of  the  treasurer,  it  was  held,  that  the 
proceeds  of  the  land  in  the  hands  of  the  treasurer  are  assets  for  the 
/  payment  of  the  debts  of  the  deceased,  and  must  be  applied  accord- 
ingly. The  treasurer  was  decreed  to  pay  the  funds  into  the  hands  of 
the  administrator  of  B.  C.,  deceased.  Mallory's  Administrator  v. 
Oraif/e,  73 

2.  Although  it  seems  doubtful  whether  it  would  not  be  the  better  prac- 
tice to  send  the  parties  to  the  Orphans  Court  for  a  final  settlement,  yet 
the  general  practice  appears  to  be  otherwise.  Ordinarily,  when  the 


508  INDEX. 

parties  are  before  the  court,  the  final  account  is  settled  in  Chan- 
cery, ib. 
See  WILL,  4  to  8. 

ASSIGNMENT. 

1.  An  assignee,  under  the  act  entitled  "  an  act  to  secure  to  creditors  an 
equal  and  just  division  of  the  estates  of  debtors  who  convey  to  as- 
signees for  the  benefit  of  creditors,"  is  not  chargeable  with  interest  on 
the  dividend  in  his  hands  due  to  a  creditor,  although  he  may  have  de- 
layed settling  his  final  account  in  the  Orphans  Court  for  a  much  longer 
time  than  is  allowed  by  the  statute  for  that  purpose,  unless  the  claim 
of  the  creditor  to  his  divideud  was  in  some  way  affected  by  the  non- 
compliance  of  the  assignee  with  the  requirements  of  the  statute.    Tom- 
linson  v.  Smallwood,  286 

2.  Th-j  statute  makes  it  the  duty  of  the  assignee  to  declare  the  dividends, 
and  make  distribution  without  any  order  or  decree  of  the  court  for 
that  purpose.    The  dividends  become  payable  as  soon   as  there  is 
money  in  hand  for  the  purpose,  without  any  control  or  action  of  the 
court.    The  statute  requires  no  notice  to  be  given  to  the  creditor — it  is 
liis  duty  to  make  application  to  the  assignee.  ib. 

3.  The  filing  of  a  final  account  is  not  intended  as  notice  to  the  creditor 
that  the  dividends  are  ready.  ib. 

4.  If  thfe  creditor  was  not  delayed  or  hindered  in  the  receipt  of  his  divi- 
dend by  the  delay  of  the  assignee  in  settling  his  final  account,  but 
failed  to  receive  his  pay  only  because  he  neglected  to  call  on  the  as- 
eignee  and  demand  it,  he  is  not  entitled  to  interest.  ib. 

6.  It  would  be  most  burthensome  and  unjust  to  lay  down  the  rule,  that  it 
is  the  duty  of  an  assignee  to  go  to  the  creditors,  and  tender  them 
their  money,  and  that  on  failure  of  his  doing  so  the  assignee  should 
be  chargeable  with  interest  on  the  money  in  his  hands.  ib. 

See  DOWER,  1  to  4. 

ATTACHMENT. 
See  MORTGAGE,  12. 

BEQUEST. 
See  WILL. 

BRIDGES. 
See  HIGHWAY. 

.BURTHEN  OF  PROOF. 
See  WILL,  17. 

CHILDREN. 
See  WILL,  9, 10, 1L 

COMMISSIONS. 
Bee  EXECUTORS  AND  ADMUOSTBATOBS,  7. 


INDEX.  509 

CONTRACT. 

See  AGREEMENT. 

CONVERSION  OF  REAL  ESTATE  INTO  PERSONAL. 
See  WILL,  4  to  8. 

CORPORATION. 

1.  The  Sussex  Zinc  Company  agreed,  under  seal,  to  transfer  to  the  New 
Jersey  Zinc  Company  all  their  stock  and  all  their  property,  real  and 
personal.     Both  parties  applied  to  the  legislature,  and  procured  an 
act  authorizing  it  to  be  done.     Under  the  agreement  and  act,  the  Sus- 
sex Company  transferred  to  the  other  company  all  its  stock,  21,849 
shares,  not  issued  to  individuals,  and  all  its  stockholders  transferred 
all  their  shares,  20,151,  and  the  New  Jersey  Zinc  Company  issued  a 
like  amount,  48,000  shares,  of  their  own  stock  in  payment.     A  year 
afterwards,  while  three  of  the  directors  of  the  Sussex  Company  had 
not  yet  transferred  thirty  shares  out  of   the  48,000  to  the  Zinc  Com- 
pany, they  applied  to  the  legislature,  and  got  the  name  of  the  Sussex 
Company  changed  to  that  of  the  Franklinite  Company,  and  48,000 
shares  of  additional  stock,  and  then  also  transferred  the  said  thirty 
shares  of  old  stock. 

Held,  1st.  That,  by  these  proceedings,  the  New  Jersey  Zinc  Company 
became  entitled  in  equity  to  all  the  property  owned  by  the  Sussex 
Company  at  the  time  of  the  transfer  of  the  stock,  and  that  Chancery 
will  protect  the  former  in  its  use.  The  New  Jersey  Zinc  Co.  v.  The 
Boston  Franklinite  Co.,  418 

2.  2d.  That  the  Franklinite  Company,  as  regards  the  property  owned  by 
the  Sussex  Company  at  the  time  of  said  transfer  of  stock,  is  a  new  cor- 
poration, and  as  such  has  no  title,  either  equitable  or  legal,  to  the 
property  the  Sussex  Company  had  so  agreed  to  convey.  ib. 

3.  3d.  If  the  Franklinite  Company  is  not  a  new  corporation,  but  the  Sus- 
sex Company  under  a,  new  name,  then  the  increased  stock,  as  well  as 
the  old  stock,  belongs  in  law  and  equity  to  the  Zinc  Company,  as  own- 
ers of  the  old  stock. 

4.  The  complainant  was  the  owner  of  a  farm,  through  which  the  defend- 
ants, the  Morris  and  Essex  Railroad  Company,  in  the  construction  of 
their  work,  made  an  excavation.     Commissioners  were  called,  under 
the  company's  charter,  to  assess  the  damages,  from  whose  award  the 
complainant  appealed.     Before  the  hearing  of  the  appeal,  II.  and  W., 
who  had  contracted  with  the  company  to  procure  the  right  of  way  for 
them,  and  to  pay  the  expenses  of  it,  proposed  to  submit  the  matter  in 
difference  to  arbitration,  which  was  done.     By  the  charter  of  the 
company,  they  were  obliged  to  construct  and  keep  in  repair  suitable 
wagon  ways  over  or  under  their  road  where  the  railroad  intersected 
any  farm.     During  the  deliberations  of  the  arbitrators,  the  complain- 
ant stated  that,  he  should  require  a  suitable  wagonway  over  tlio  rail- 
road where  it  crossed  his  farm,  but  H.  and  W.  replied  that  this  was  a. 

VOL.  ii.  2 1  * 


510  INDEX. 

matter  with  which  the  arbitrators  had  nothing  to  do,  and  was  no  part 
of  the  submission.  This  view  was  assented  to  by  the  arbitrators  and 
both  parties.  The  arbitrators  made  their  award,  and  II.  and  W. 
waited  on  complainant  with  the  money  awarded  and  the  draft  of  a 
deed.  The  complainant  objected  to  signing  this  deed,  on  the  ground 
that  it  did  not,  in  express  terms,  reserve  all  his  rights  to  a  crossing ; 
but  finally  executed  it,  on  being  assured  by  II.  and  W.,  one  of  whom 
was  a  lawyer,  that  such  rights  would  not  be  affected  by  the  instru- 
ment. The  company  having  failed  to  put  up  a  crossing  after  being 
legally  notified,  the  complainant  made  it  at  his  own  expense,  and,  by 
virtue  of  an  authority  contained  in  their  charter,  sued  them  at  law 
for  the  money  expended.  The  company  set  up  the  deed  as  a  bar  to 
the  recovery.  The  bill  was  filed  to  reform  the  deed  and  enjoin  the 
defendants  from  interposing  it  as  a  defence  at  law.  The  company 
filed  a  demurrer  to  the  bill. 

Held  that,  as  between  the  company  and  the  complainant,  H.  and  W. 
were  the  agents  of  the  company  in  procuring  a  deed  for  the  complain- 
ant's land,  notwithstanding  the  fact  that  they  were  bound  by  a  con- 
tract with  the  company  to  procure  the  right  of  way  for  the  railroad 
over  complainant's  land,  and  that  representations  made  by  H.  and  \V. 
to  complainant  are  to  be  regarded  as  made  by  the  company,  and  that 
the  company  are  estopped  from  setting  up  the  deed  for  any  purpose  so 
distinctly  repudiated  in  their  bargain.  Morris  and  JZ&cjc  Railroad  Co. 
v.  Green,  469 

5.  That  the  company,  by  accepting  the  deed,  ratified  what  was  done  by 
H.  and  W.  in  their  behalf;  and  although  it  is  true  that  no  one  is 
bound  by  his  ratification  of  what  has  been  done  in  his  behalf,  unless 
he  is  informed  of  all  the  circumstances,  yet  he  cannot  avail  himself  of 
the  benefit  of  the  act  except  cum  onere.  ib. 

6.  The  company  being  responsible  for  the  acts  of  their  agents,  such  a  de- 
fence would   be  wholly   inequitable   and  unjust.     The  complainant 
should  not  be  compelled  to  be  at  the  hazard  or  expense  of  litigating 
it.    Whether  the  company,  by  a  correct  construction  of  the  deed,  are 
released  from  the  liability  imposed  by  their  charter  to  construct  the 
bridge — query.  ib. 

7.  The  injunction  granted  by  the  Chancellor  against  the  use  of  the  deed 
by  the  company  as  a  defence  to  complainant's  suit  at  law,  held  a  suffi- 
cient protection  to  the  complainant,  without  determining  the  question 
of  his  right  to  have  the  deed  reformed.  ib. 

COSTS. 
See  EXECUTORS  AND  ADMINISTRATORS,  13;  WELL,  16,  48. 

CREDITOR. 

L  On  a  bill,  filed  by  a  judgment  creditor  against  the  debtor  and  other 
prior  judgment  creditors  of.  the  same  debtor,  alleging  that  the  debt  for 
which  complainant's  judgment  was  entered  was  fraudulently  contracted 
by  the  debtor,  in  purchasing  goods  of  complainant  with  intent  to  sub- 
ject them  to  the  lien  of  the  execution  of  the  defendant's  relatives 


INDEX.  511 

having  claims  against  him,  and  claiming  that  complainant  is  entitled 
to  have  the  articles  so  purchased  specifically  applied  to  the  satisfac- 
tion of  his  judgment,  it  was  held — 

That  complainant's  case  must  rest  upon  the  ground  of  fraud  in  the 
purchase  of  the  articles  from  complainant  which  vitiated  the  contract, 
and  prevented  any  change  in  the  ownership  of  the  chattels ;  and  that 
to  sustain  the  case  upon  this  ground,  the  articles  must  have  been  pur- 
chased with  the  purpose  of  defrauding  the  complainant,  or  the  credit 
must  have  been  obtained  by  false  and  fraudulent  representations  oi 
material  facts  calculated  to  mislead  the  complainant,  and  upon  which 
he  acted  in  the  sale  of  the  goods.  Stoutenburgh  v.  Konkle,  33 

2.  If  the  debtor  purchased  the  goods  of  complainant  with  the  fraudulent 
design  of  subjecting  them  to  the  executions  of  his  near  relations  and 
other  friends  having  claims  against  him  however  just,  it  affords  a  clear 
case  for  equitable  relief.  ib. 

3.  A  purchaser  gains  no  title,  and  acquires  no  right  of  retaining  goods,  if 
lie  obtain  possession  by  gross  fraud  under  color  of  purchase,  whether 
on  credit  or  otherwise.  ib. 

4.  When  goods  are  sold  for  cash  on  delivery,  if  the  purchaser,  on  deliv- 
ery of  the  goods  and  demand  of  payment,  refuses  to  pay  the  purchase 
money,  it  is  competent  for  the  vendor  at  once  to  reclaim  the  goods,  and 
seek  the  protection  of  a  court  of  equity  against  judgment  creditors  of 
the  vendee.  ib. 
In  such  a  case  no  title  passes.  The  condition  of  the  sale  is  violated,    ib. 

5.  If  an  insolvent  purchaser,  concealing  his  insolvency  from  the  vendor, 
procures  goods  without  intending  to  pay  for  them,  the  property  in  the 
goods  will  not  be  changed.  ib. 

6.  When,  however,  the  vendor  does  not  disaffirm  the  contract,  and  reclaim 
the  goods  as  his  own,  but  on  the  failure  and  absconding  of  the  vendee, 
issues  an  attachment  against  him  for  the  debt,  and  afterwards  obtains 
judgment  by  confession  against  him,  and  seeks  to  enforce  the  judgment 
by  claiming  an  equitable  lien  on  the  goods  sold,  that  is  an  affirmance 
of  the  contract,  and  there  is  no  principle  on  which  the  complainant  is 
entitled  to  that  relief  against  prior  judgment  creditors  of  the  vendee 
when  executions  have  been  levied  on  the  goods.  ib. 

See  ASSIGNMENT,  1  to  5 ;  MARSHALLING  OF  SECURITIES,  1  to  6. 

DEATH. 

See  PRESUMPTION  OF  DEATH. 
DEED. 

1.  On  a  bill  filed  to  reform  an  alleged  mistake  in  the  description  of  a  lot 
of  land  conveyed  by  deed  of  bargain  and  sale,  where  the  allegation  of 
complainant  was,  that  the  deed  sought  to  be  reformed  was  made  to  cor- 
recl  a  former  deed  between  the  same  parters,  which  was  erroneous  in 
consequence  of  a  mistake  of  the  parties  in  supposing  that  two  streets, 
at  the  intersection  of  which  the  lot  was  located,  intersected  each  other 
at  right  angles,  and  that  the  object  of  making  the  second  deed  was  to 


512  INDEX. 

square  the  lots,  and  to  make  the  westerly  line  of  complainant's  lot  per- 
pendicular to  one  of  said  streets,  when  in  fact  the  land  conveyed  bj 
the  second  deed  was  not  sufficient  for  the  purpose  intended,  and  that 
to  accomplish  that  object  would  require  complainant  to  have  nineteen 
feet  more  of  land  on  the  turnpike  than  was  actually  conveyed  to  him, 
it  was  held — 

That  although  there  was  some  parol  evidence  to  show  that,  at  the  time 
the  second  conveyance  was  made,  the  parties  supposed  it  would  square 
the  complainant's  lot  with  the  turnpike,  nnd  make  the  westerly  line 
perpendicular  thereto,  yet  where  there  is  no  evidence  to  show  that  the 
grantor  had  any  intention  to  convey  more  laud  than  lie  did  convey,  or 
that  he  would  have  sold  more  than  he  did,  unless  he  had  been  paid  an 
additional  price,  or  that  the  grantee  got  less  land  than  he  bargained 
for  or  paid  for,  the  deed  will  not  be  reformed.  Durant  v.  Bacot,  411 

2.  A  deed  for  lands,  after  it  has  been  deliberately  reduced  to  writing,  ex- 
ecuted, acknowledged,  and  recorded,  and  has  remained  unquestioned 
for  many  years,  should  not  be  disturbed  or  made  different  from  what 
the  parties  made  it  on  any  feeble  or  inconclusive  evidence.  ib. 

8.  It  may  well  be  doubted  whether  a  court  should  even  attempt  to  re- 
form a  deed  upon  verbal  testimony  alone  when  the  alleged  mistake  is 
denied.  ib. 

4.  A  deed  conveys  to  the  Zinc  Company  "  all  the  zinc  ores  in  the  follow- 
ing described  premises,"  describing  them  by  metes  and  bounds;  and 
then  adds,  "and  also  all  the  estate,  right  and  tide  of  the  said  parties 
of  the  first  part  in  the  before  described  premises." 
Held  that  it  conveyed  all  right  of  the  parties  of  the  first  part  in  the 
described  premises.  The  New  Jersey  Zinc  Co.  v.  The  JBoslon  Franklin- 
ite  Co.,  413 

6.  A  deed  conveys  to  the  grantee  all  the  zinc  and  other  ores,  except  the 
ore  called  franklinite  and  iron  ore,  where  it  exists  separate  from  the 
zinc,  "  to  have  and  to§  hold  all  the  zinc  and  other  ores,  except  the  ore 
called  franklinite,  where  it  exists  separate  and  distinct  from  the  zinc." 
Held,  that  the  deed  conveys  all  the  zinc  ores  when  the  franklinite  was 
mixed  mechanically  with  the  zinc.  ib. 

6.  A  deed  conveys  all  the  zirtc  and  other  ores,  and  excepts  the  ore  called 
franklinite;  the  complainant  claims  a  vein  of  ores  as  passing  by  the 
name  of  zinc,  the  defendants  claim  the  same  vein  as  exccpted  under 
the  name  of  franklinite. 

Held,  that  what  was  meant  by  the  word  zinc  might  be  explained  by 
evidence  dehors  the  deed,  and  that  under  such  evidence  the  vein  in 
dispute  passed  under  the  name  of  zinc.  ib. 

7.  To  arrive  at  the  true  construction  of  the  word  "  premises,"  as  used  in 
this  deed,  it  is  competent  for  the  court  to  resort  to  the  previous  written 
agreement  between  the  parties,  in  fulfilment  of  which  the  deed  w:u 
made,  to  ascertain  from  that  what  the  grantors  intended  to  convey. — 
Pa  BROWN,  J.  ib. 

See  CORPORATION,  1  to  7 ;  EVIDENCE,  1,  2. 


INDEX.  S13 

DEMURRER. 

See  PARTIES,  1 ;  SPECIFIC  PERFORMANCE,  1, 2, 3 ;  ADMINISTRATORS,  1  to  6. 

DIVORCE. 

1.  It  is  a  well  settled  rule  of  this  court  that,  in  questions  of  divorce,  guilt 
c-im  1 1'-  tsU1  Us! led  by  the  unsupported  testimony  of  either  of  the 
J'.artiu5.     Ctanmi-ns  v.  < himmins,  138 

2.  Although  del-iy  iu  bringing  a  suit  for  divorce,  after  the  discovery  of 
the  i:< jatriissi-  n  cf  the  offence  which  is  the  ground  of  the  divorce,  of 
itseJf  o.-nslUutcs  u«»  bar,  yet  it  is  a  circumstance  always  open  to  obser- 
v.tiou,  rjiil  may,  und  in  many  cases  ought  to  determine  the  court 
a^t.'fi  >1  .T-M  ling  -elief.  ib. 

3.  Theiv  i.s,  however,  a  difference  in  the  application  of  the  principle  aa 
against  tht  husband  or  the  wife;  as  against  the  latter  the  delay  will 
rarely  furnish  evidence  of  condonation  or  connivance.  ib. 

4.  It  is  in  accordance  with  the  soundest  principles  of  public  policy  and  of 
morality  that  a  wife,  while  living  in  a  state  of  separation  from  her 
husband,  in  silent  submission  to  her  wrongs,  shall  not  be  debarred  by 
any  lapse  of  time  from  the  protection  to  which  she  might  otherwise  be 
entitled  whenever  the  husband  shall  disturb  her  peace  by  an  attempted 
exercise  of  his  marital  rights.  ib. 

5.  In  a  suit  for  divorce,  instituted  by  the  wife,  where  it  appears  that  the 
parties  have  already  been  divorced  by  a  decree  of  the  court  of  Indiana, 
in  a  proceeding  instituted  by  the  husband,  the  wife  has  no  title  to  the 
aid  of  this  court.     Kirrigan  v.  Kirrigan,  146 

G.  When  it  appears,  by  the  record  of  the  proceedings  in  Indiana,  that 
the  court  had  jurisdiction  both  of  the  parties  and  of  the  subject  mat- 
ter, that  the  defendant  appeared  by  counsel,  and  has  received  from  the 
clerk  of  that  court  the  sum  awarded  her  in  that  suit  for  alimony,  she 
will  not  now  be  permitted  to  impugn  the  decree  on  the  ground  that  it 
•  was  fraudulently  obtained.  ib. 

7.  When  it  appears,  to  the  satisfaction  of  the  court,  that  the  proceedings 
have  not  been  instituted  by  the  wife  in  good  faith  for  the  purpose  of 
obtaining  a  divorce,  but  for  the  mere  purpose  of  collecting  money 
from  her  husband,  or  compelling  him  to  support  her,  alimony  will  be 
denied,  and  a  writ  of  ne  exeat  previously  issued  will  be  quashed,      ib. 

8.  On  a  petition  for  divorce,  filed  by  a  wife  against  her  husband  on  the 
ground  of  adultery,  when  the  only  proof  of  the  guilt  of  the  husband 
is,  that  within  six  months  after  his  marriage,  he  was  affected  with  ve- 
nereal disease,  the  evidence  is  not  of  itself  sufficient  to  justify  a  decree. 
Mount  v.  Mount,  162 

9.  When  facts  relied  on  are  susceptible  of  two  or  more  interpretations, 
any  one  of  which  is  consistent  with  the  defendant's  innocence,  they 
will  not  be  sufficient  to  establish  guilt.    Though  it  is  not  necessary  to 
prove  the  direct  fact  of  adultery,  it  is  necessary  to  show  that  adultery 
is  the  only  necessary  conclusion  from  the  facts  of  the  case.  ib. 

10.    When  the  defendant  was  examined  as  a  witness,  and  denied  that 
since  his  marriage  he  has  had  connection  with  any  other  woman  than 


514  INDEX. 

his  wife,  although  his  evidence  is  not  entitled  to  the  weight  due  to  the 
testimony  of  a  fair  and  impartial  witness,  it  is  nevertheless  entitled 
to  some  weight,  and  in  a  cose  of  this  kind  is  at  least  sufficient  to  over- 
come the  ellect  of  the  evidence  on  the  part  of  the  complainant.  ib. 

DOMICIL  OF  INTESTATE. 

See  EXECTJTOBS  AND  ADMINISTBATOHS,  1  to  6. 

DOWER. 

1  On  an  application  on  behalf  of  an  infant  devisee  to  this  court  to  set 
aside  the  report  of  commissioners  assigning  dower  to  the  widow  of  tes- 
tator, on  the  ground  of  inequality  and  illegality  in  the  mode  of  making 
the  assignment,  it  was  held — 

That  the  statute  authorizing  the  assignment  of  dower  by  commissioners 
was  not  designed  to  affect  the  legal  rights  or  interests  of  the  parties  in 
the  subject  matter,  nor  to  deprive  either  party  of  any  protection  against 
an  infringement  of  those  rights.  It  was  designed  to  leave  the  power 
of  the  court  over  the  proceedings  of  the  commissioners  so  broad  and 
unlimited  as  to  afford  to  all  parties  concerned  as  full  protection  to  their 
rights  as  they  were  entitled  to  under  the  subsisting  modes  of  procedure, 
either  at  law  or  in  equity.  In  matter  of  Ann  Garrison,  393 

2.  The  court  must  have  power  under  the  statute  to  administer  all  the  re- 
lief, legal  or  equitable,  against  an  illegal  or  unjust  assignment  of  dower 
to  which  the  doweress  or  the  tenant  was  previously  entitled.     Relief 
may  be  granted,  at  the  instance  of  either,  against  any  act  of  the  com- 
missioners prejudicial  to  the  legal  rights  of  any  party  concerned  in 
the  proceedings.  ib. 

3.  In  this  case  testator  devised  to  his  son  and  to  each  of  his  three  grand- 
children distinct  farms  and  portions  of  real  estate  subject  to  the  widow's 
right  of  dower.     The  commissioners  assigned  an  entire  farm,  which 
was  devised  to  one  of  the  minors,  as  a  portion  of  the  widow's  dower. 
Nearly  one-half  of  the  land  devised  to  this  minor  was  assigned  to  the 
widow  for  her  dower,  and  much  less  than  one-third  in  value  of  the 
land  i  f  othe-  devisees  was  so  assigned,  although  the  whole  land  as- 
Bi^ne '.  to  the  A-idow  did  not  exceed  one-third  of  the  whole  land  of 
wLich  testator  died  seized.     Held  that  the  assignment  was  illegal.     No 
El  -re  than  one-third  of  the  land  of  each  tenant  must  be  assigned  to 
the  T'ldcw  for  her  Jower.  ib, 

4.  Each  fit  t.je  Untnts  is  equally  entitled  to  relief,  whether  the  assign- 
ment it  iiJcgsii  3.3 1  unequal,  as  between  the  widow's  dower  and  the 
eut.;re  tstttt.  i.r   ,nr-  as  between  the  dower  and  the  interest  of  the 

U..un:s  individually.  i^ 

EASEMENT. 
See  HIGHWAY. 

EQUITABLE  ASSIGNMENT. 
See  MECHANIC'S  LIEN,  3,  4,  5. 


INDEX.  515 

ESTATE. 
See  CORPORATION,  1,  2,  3 ;  HUSBAND  AND  WIFE,  1  to  7. 

ESTOPPEL. 
See  CORPORATION,  4  to  7. 

EVIDENCE. 

1.  Where  a  bill  is  filed  to  avoid  a  deed,  on  the  ground  that  it  was  never 
delivered  to  the  grantee,  but  was  fraudulently  and  clandestinely  taken 
from  his  possession,  and  the  defendants  (the  heirs  of  the  grantee)  have 
no  personal  knowledge  of  the  delivery  of  the  deed,  and  can  only  an- 
swer as  to  their  information  and  belief,  and  the  answer  contains  no 
positive  denial  of  the  fact  which  is  distinctly  alleged  and  charged  in 
the  bill,  and  therefore  not  evidence  in  the  defendant's  favor  upon  that 
point,  the  complainant  is  not  required  to  increase  the  weight  of  his 
evidence  to  overcome  the  answer.     Benson  v.  Woolverton,  158 

2.  The  fact  of  the  possession  of  a  deed  by  the  grantee,  duly  executed  and 
acknowledged  by  the  grantor,  is  presumptive  evidence  of  the  delivery 
of  the  deed  at  the  date  of  the  acknowledgment.     That  presumption  is 
to  be  overcome  by  counter  evidence  of  superior  weight.     The  uncor- 
roborated evidence  of  the  grantor  is  not  sufficient  for  that  purpose,   ib. 

See  PRACTICE,  4 ;  DEED,  1  to  7  ;   DIVORCE,  1,  8,  9, 10 ;  WILL,  10,  12,  13, 
17  to  20,  25,  26,  29  to  33,  39,  40,  53,  57. 

EXECUTION. 
See  JUDGMENT. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  J.  A.  M.,  domiciled  in  New  Jersey,  died  intestate.  Letters  of  admin- 
istration on  her  estate  were  granted  to  the  complainant,  in  the  place  of 
the  domicil  of  the  intestate.  The  defendant,  a  brother  and  one  of  the 
ixu'  of  kin  of  the  intestate,  obtained  possession  of  some  of  the  per- 
sonal property  of  the  deceased,  consisting  of  bonds  and  stock  of  the 
Buffalo,  New  York,  and  Erie  Railroad,  a  bond  of  the  New  York  and 
New  Haven  Railroad  Company,  and  a  note  or  notes  of  a  brother  of 
the  intestate,  who  resided  in  New  Jersey,  and  procured  administration 
of  the  personal  estate  of  the  intestate  to  be  granted  to  him  by  the  sur- 
rogate of  the  city  and  county  of  New  York.  Complainant  filed  hia 
bill  in  this  court  against  the  defendant,  alleging  the  above  facts,  and 
also  that  defendant  had  received  other  considerable  sums  of  money  i» 
New. York  as  administrator;  that  there  were  no  debts,  and  praying  » 
discovery  and  account  of  the  amount  in  the  defendant's  hands,  and  a 
decree  that  lie  pay  over  such  amount  to  the  complainant.  On  a  de- 
murrer to  this  bill,  it  was  held — • 

That  as  the  intestate  left  assets  both  in  New  York  and  in  this  state, 
administration  was  rightfully  granted  in  both  states,  although  the  right 
of  succession  to  the  personal  estate  is  to  be  regulated  by  the  law  of  the 
domicil.  Banta  v.  Moore,  97 


516  INDEX. 

2.  Administration  of  the  estate  must  be  in  the  jurisdiction  in  which  pos- 
session of  it  was  taken  and  held  under  lawful  authority ;  and  when 
there  are  two  administrators  in  different  countries,  eacli  portion  of  it 
must  be  administered  in  the  country  where  possession  of  it  was  so 
taken.  ib. 

3.  The  person  to  whom  administration  is  granted  is  bound  to  administer 
the  estate  and  pay  the  debts  of  the  deceased.     His  duties  remain  the 
same  though  the  intestate  may  have  been  domiciled  elsewhere.    The 
right  of  administration  is  irrespective  of  the  domicil  of  the  intestate,  ib. 

4.  The  validity  of  the  letters  of  administration  in  New  York  not  being 
called  in  question,  the  claim  of  the  complainant,  that  the  defendant 
having  as  such  foreign  administrator  collected  funds  of  the  intestate, 
is  bound  to  account  for  them  to  the  administrator  in  this  state,  to  be 
administered  here,  is  without  foundation  in  principle.  ib. 

6.  The  bill  alleges  that,  as  to  one  or  more  of  the  securities  taken  and 
held  by  defendant,  the  debtor  resided  and  still  resides  in  this  state. 
The  foreign  administration  gave  no  title  to  these  securities,  as  against 
the  administrator  in  this  state.  The  bill  prays  a  discovery  and  ac- 
count as  to  these  securities,  and  for  that  purpose  it  can  be  main- 
tained, ib. 

6.  The  demurrer  is  too  general ;  it  is  applied  to  the  whole  bill,  but  is 
good  as  to  part  only,  and  must  be  overruled.  ib. 

7.  Where  the  amount  of  commissions  allowed  the  executors  is  grossly  in- 
adequate, it  is  the  duty  of  the  Ordinary  to  substitute  his  own  judg- 
ment, and  exercise  his  own    discretion  upon    the  subject  matter. 
Anderson  v.  Berry,  233 

8.  When  executors,  being  authorized  by  the  will  of  their  testator  to  sell 
his  real  estate,  advertised  for  sale  his  farm,  which  was  sold  at  public 
auction  to  one  S.,  who  purchased  at  the  request  of  one  of  the  execu- 
tors, who  was  the  real  purchaser,  for  the  sum  of  $4500.    The  purchaser 
did  not  sign  the  contract  of  sale,  nor  were  the  other  conditions  com- 
plied with  at  the  time,  on  account  of  objections  to  the  sale  made  by 
the  other  executors,  but  before  the  day  named  by  the  conditions  of 
sale  the  real  purchaser  took  possession  of  the  farm,  contracted  for  the 
sale  of  a  part  of  it,  and  put  the  purchaser  in  possession,  and  on  the 
day  and  at  the  place  appointed  for  giving  the  deed  he  appeared,  in 
compliance  with  the  conditions,  prepared  to  complete  the  purchase, 
but  the  other  executors  refused  to  make  the  title.    After  repeated  un- 
successful efforts,  during  nine  months,  to  procure  the  title,  the  pur- 
chaser gave  notice  to  his  co-executors  that  he  would  no  longer  hold 
himself  responsible  for  the  purchase,  and  requested  them  to  resell  the 
property. 

About  a  year  aftenvards  the  purchaser  was  cited  before  the  Orphans 
Court  by  his  co-executors  to  render  an  account  of  his  administration, 
and  was  ordered  by  the  court  to  file  an  account  within  twenty  days, 
charging  himself  with  $4500,  the  purchase  money  of  the  farm,  as  as- 
sets in  his  hands. 
Oa  an  appeal  from  the  decree  of  the  Orphans  Court  it  was  AeW— 


INDEX.  sn 

That  there  was  clearly  no  valid  contract  of  sale ;  treating  the  executor 
as  a  stranger  to  the  estate,  the  fact  that  the  purchaser  refused  to  sign 
the  conditions  because  one  of  the  executors  refused  to  ratify  the  sale, 
is  conclusive  on  that  point.  Skillman  v.  Skillman,  388 

9.  That  no  subsequent  act  of  the  purchasing  executor  bound  him.  His 
taking  possession  of  the  farm,  contracting  verbally  for  the  sale  of  a 
part  of  it,  and  putting  the  purchaser  in  possession,  were  manifestly 
done  in  good  faith  with  the  expectation  of  obtaining  the  title.  Hav- 
ing failed  in  that,  he  cannot  be  bound  by  these  acts  as  part  perform- 
ance or  as  an  acknowledgment  of  his  liability  as  purchaser.  ib. 

10.  The  execution  of  the  deed  by  the  other  executors  a  year  after  the  pur- 
chase was  made,  and  leaving  it  at  the  office  of  the  attorney  of  the  pur- 
chaser after  he  had  given  distinct  notice  that  he  would  not  accept  the 
title,  was  a  mere  nullity.  ib. 

11.  The  purchase  of  the  property  by  one  of  the  executors  was  clearly  ille- 
gal.    He  would  acquire  no  valid  title  if  the  deed  was  delivered.    If 
he  had  accepted  the  title,  and  agreed  to  pay  the  price,  he  might  not 
be  permitted  in  equity  to  disavow  the  act  and  refuse  to  pay  the  pur- 
chase money.     But  no  court  would  require  an  executor,  against  his 
will,  to  act  in  violation  of  his  duty  or  to  accept  an  invalid  title.       ib. 

12.  Neither  the  Orphans  Court  nor  this  court  has  any  power  to  enforce  a 
specific  performance  of  the  contract,  even  if  the  executor  was  bound 
in  equity  to  a  specific  performance.     That  question,  as  well  as  the 
question  of  the  liability  of  the  executors  for  a  failure  to  sell  the  land 
and  settle  the  estate,  belongs  to  another  tribunal.  ib. 

13.  The  decree  of  the  Orphans  Court  was  in  all  things  reversed,  but  no 
costs  were  allowed  to  either  party,  as  against  the  other,  nor  were  costs 
awarded  to  either  party  out  of  the  estate.  ib. 

See  ASSETS,  1,  2 ;  ORPHANS  COURT,  3,  4  ;   PARTIES,  1 ;    SPECIFIC  PER- 
FORMANCE, 1,  2,  3 ;  WILL,  4  to  8. 

FOKEIGN  ADMINISTEATION. 

See  EXECUTORS  AND  ADMINISTRATORS,  1  to  6. 

FEAUD. 

1.  On  a  bill  filed  by  defendants  in  attachment,  and  a  subsequent  judgment 
creditor  of  the  defendants  in  attachment,  against  the  purchaser  at  a 
sale  of  the  defendant's  real  estate,  made  by  the  auditors  in  attachment 
to  set  aside  the  sale  on  account  of  an  imperfect  description  of  the 
property  in  the  advertisement  of  the  sale,  and  gross  inadequacy  of 
price,  it  was  held  that  the  fact  that  property  worth  $12,000  is  struck 
off  and  sold  at  a  public  sale  for  $400,  affords  in  itself  very  strong 
ground  for  equitable  relief.     It  is  such  gross  inadequacy  of  price  as  to 
shock  the  conscience,  and  to  amount  in  itself  to  strong  evidence  of 
fraud.     Hodyson  v.  Far r ell, 

2.  The  fact  that  the  advertisement  was  so  framed  as  to  mislead,  so  that 
no  one  not  acquainted  with  the  premises  could  have  conjectured,  from 
the  advertisement,  what  the  property  was  that  was  intended  to  be  sold, 


618  INDEX. 

in  connection  with  the  fact  that  there  were  no  bidders  at  the  sale  but 
the  purchaser,  and  that  the  property  was  sold  at  a  very  inadequate 
price,  makes  the  sale  constructively  fraudulent  as  against  the  detVmlunt 
in  execution  or  others  having  liens  upon  the  property,  and  on  that  ac- 
count constitutes  a  ground  of  equitable  relief,  although  the  advertise- 
ment may  be  a  technical  compliance  with  the  requirement  of  the  stat- 
ute so  far  as  to  vest  a  valid  title  in  the  purchaser.  ib. 

3.  When,  however,  it  appears,  by  the  bill  and  answer  taken  together, 
that  on  account  of  other  encumbrances  on  the  premises  they  really 
brought  a  much  higher  price  than  that  at  which  they  were  struck  off 
to  the  purchaser,  and  that  a  resale  cannot  benefit  the  judgment  cred- 
itor at  whose  instance,  and  mainly  for  whose  benefit  the  injunction 
was  issued,  such  resale  will  not  be  ordered,  and  the  injunction  will  be 
dissolved.  ib. 

4.  The  interest  of  the  defendants  in  attachment  can  in  no  wise  be  affected 
by  the  price  at  which  the  property  was  sold,  except  as  it  leaves  a  larger 
amount  of  their  debts  unpaid,  and  that  alone  constitutes  110  good  ground 
for  equitable  relief.  ib. 

HIGHWAY. 

L  When  an  act  of  the  legislature  authorized  commissioners,  thereby  ap- 
pointed, to  select  a  site  for  a  bridge  over  the  Passaic  river,  within  cer- 
tain limits  in  the  city  of  Newark,  and  to  erect,  or  cause  to  be  erected 
a  bridge  over  the  said  river,  and  to  lay  out  a  road  four  rods  wide  from 
the  court-house  in  Newark  to  the  place  where  the  bridge  was  to  be 
built,  and  the  commissioners,  having  located  the  bridge,  and  provided 
for  its  erection,  proceeded  to  lay  out  the  road,  and  by  the  survey  and 
return  of  which,  recorded  as  required  by  the  act,  it  appeared  that  the 
highway  was  laid  out  to  "the  west  end  of  the  bridge" — 
Held,  that  inasmuch  as  the  survey  carries  the  highway  to  the  river, 
•wherever  the  river  is  found  there  the  highway  extends.  If  the  shore 
is  extended  into  the  water  by  alluvial  deposits,  or  is  filled  in  by  the 
proprietor  of  the  soil,  the  public  easement  is,  by  operation  of  law,  ex- 
tended from  its  former  terminus  over  the  new  made  land  to  the  water. 
Xeu-urk  Lime  and  Cement  Co.  v.  Mayor  and  Council  of  Xeirark,  64 

2.  The  owner  of  the  soil,  even  when  his  title  is  unquestioned,  cannot,  by 
filling  in,  and  thus  extending  his  land  towards  the  water,  obstruct  the 
public  right  of  way  to  the  river.  ih. 

3.  The  highway  being  required  to  be  sixty-six  feet  wide,  and  the  bridge 
being  only  required  to  be  thirty-two  feet  wide,  if  in  progress  of  time 
it  had  lieen  found  the  interest  of  the  bridge  proprietors  to  widen  the 
bridge  to  .sixty-six  feet,  it  is  not  perceived  why  they  may  not  lawfully 
have  done  so,  and  required  the  full  width  of  the  highway  for  that 
purpose.     The  public  could  not  justly  have  contracted  the  highway  to 
the  prejudice  of  the  proprietors,  nor,  on  the  other  hand,  can  the  pro- 
prietors, by  leaving  a  part  of  the  highway  unappropriated,  impair  the 
rights  of  the  public,  much  less  can  they  despoil  the  public  of  their 
rights  by  claimin;;  title  hostile  to  those  under  whom  they  claim.      ib. 

4.  The  proprietors  of  the  bridge  may  be  deemed  to  have  the  right  to  the 


INDEX.  ,  519 

enjoyment,  for  the  purposes  of  the  trust  committed  to  them,  of  the 
whole  terminus  of  the  highway  upon  the  river.  This  seems  necessarily 
involved  in  the  right  of  constructing  a  bridge  for  the  accommodation 
of  the  highway  across  the  river  to  any  width  they  may  deem  proper 
over  thirty-two  feet ;  hut  this  possession  was  not  independent  of  or  hos- 
tile to  the  public  right,  and  no  right  adverse  to  the  public  could  be  ac- 
quired under  it.  •  ib. 
6.  If,  under  such  circumstances,  the  bridge  proprietors,  or  those  claiming 
under  them,  set  up  title  adverse  to  the  public  easement,  and  especially 
if  they  invoke  the  aid  of  a  court  of  equity  to  protect  them  in  the  en- 
joyment of  such  pretended  right,  it  becomes  them  to  show  conclusively 
the  existence  of  the  right,  and  how  they  acquired  it.  ib. 

6.  \Vhen  the  Morris  Canal  Company  take  land  under  their  charter  the 
whole  present  interest  is  vested  in  them,  and  that  whether  they  take 
by  condemnation  or  by  deed.     Barnett  v.  Johnson,  481 

7.  In  such  case  the  prior  owner  has  no  interest  in  the  land  taken  by  the 
company  which  he  can  protect  by  injunction.  ib. 

8.  Two  classes  of  rights,  originating  in  necessity,  spring  up  coeval  with 
every  highway ;  the  first  relates  to  the  public  passage;  the  second, 
equally  perfect,  but  subordinate  to  the  first,  relates  to  the  adjacent 
owners.     Among  the  latter  is  that  of  receiving  from  the  public  high- 
way light  and  air.  ib. 

9.  The  Morris  canal  is  a  public  highway.    It  is  not  the  less  a  highway 
because  of  the  tolls  and  by  reason  of  its  being  subject  to  the  regula- 
tions of  the  company.  ib. 

10.  Owners  of  land  adjacent  upon  the  Morris  canal  have  the  privilege  of 
receiving  from  it  light  and  air;  provided,  in  so  doing,  they  do  not  in- 
terfere with  the  most  convenient  use  of  the  canal  as  a  public  high- 
way, or  with  any  of  the  regulations  of  the  directors  made  bonafide  for 
that  purpose.  ib. 

11.  The  complainant  owned  a  lot  in  the  city  of  Newark  adjacent  upon  the 
line  of  the  Morris  canal,  and  built  a  house  touching  the  line,  with 
windows  facing  the  canal.     Held,  that  this  court  will  restrain  the  de- 
fendant, holding  under  the  company,  from  erecting  a  building  over 
the  canal  so  as  to  shut  up  the  complainant's  windows.  ib. 

HUSBAND  AND  WIFE. 

1.  The  husband  is  a  necessary  party  to  a  bill  filed  by  the  grantee  of  the 
husband  against  the  wife  for  the  partition  of  lands  alleged  to  have 
been  held  by  the  husband  and  wife  as  tenants  in  common.     The  wife 
can  only  defend  the  suit  jointly  with  her  husband,  except  under  spe- 
cial circumstances.     McDermott  v.  French,  78 

2.  A  wife,  though  living  separate  from  her  husband,  even  though  she  has 
been  separated  by  deed,  cannot  be  sued  alone;  her  husband  must  be 
joined,  if  only  for  conformity.  ib. 

3.  If  an  estate  in  fee  be  given  to  a  man  and  his  wife,  or  a  joint  purchase 
be  made  by  them  during  coverture,  they  are  neither  properly  joint 
tenants  nor  tenants  in  common,  for  they  are  in  law  but  one  person, 


520  INDEX. 

and  cannot  take  by  moieties.  They  are  both  seized  of  the  entirety, 
and  neither  can  sell  without  the  consent  of  the  other,  and  the  survivor 
takes  the  whole.  A  conveyance  by  cither  alone  is  inoperative.  ib. 

4.  The  estate  thus  vested  ui  the  husband  and  wife  by  a  conveyance  to 
them  during  coverture  is  not  affected  by  the  act  of  1812  respecting 
joint  tenants  and  tenants  in  common  (Ifix.  Dig.  13G,  \  34).    That  act 
•extends  to  joint  tenancies  only,  and  not  to  tenancies  by  entireties,   ib. 

5.  But  when  an  estate  is  conveyed  to  a  man  and  woman  before  marriage, 
who  afterwards  intermarry,  as  they  took  by  moieties  they  will  con- 
tinue to  hold  by  moieties  after  marriage.  ib. 

6.  So  it  seems  that  a  husband  and  wife  may,  by  express  words,  be  made 
tenants  in  common  by  gift  to  them  during  coverture.  ib. 

7.  When  a  bill  for  partition  alleges  that  the  husband  and  wife  were  seized 
as  tenants  in  common  by  virtue  of  a  conveyance  to  them  made  during 
coverture,  that  fact  is  not  necessarily  inconsistent  with  the  creation  of 
a  tenancy  in  common,  and  on  demurrer  to  such  a  bill  it  will  be  as- 
sumed that  apt  words  were  used  in  the  conveyance  for  that  purpose. 
If  in  truth  the  conveyance  was  made  to  the  husband  and  wife  during 
coverture,  and  apt  words  for  the  creation  of  a  tenancy  in  common 
were  not  used,  the  fact  should  be  shown  by  way  of  plea,  ib. 

8.  A  married  woman,  owning  real  estate  by  devise  from  her  father,  ob- 
tained an  injunction  against  a  purchaser  of  the  real  estate  under  exe- 
cution against  her  husband,  restraining  him  from  proceeding  with  a 
suit  at  law  to  recover  the  possession  of  the  property.     On  a  motion  to 
dissolve  this  injunction,  it  was  held,  that  as  the  wife's  claim  to  protec- 
tion was  founded  on  her  allegation,  that  by  her  father's  will  the  real 
estate  was  devised  to  her  sole  and  separate  use,  and  that  her  husband 
had  no  estate  in  the  land  which  could  be  the  subject  of  a  levy  and  sale 
at  law ;  if  that  be  so,  the  wife  has  a  valid  and  complete  defence  at 
law,  and  there  is  no  need  of  the  intervention  of  this  court  to  protect 
her  interest.     Emery  v.  Vansickel,  144 

9.  The  claim  of  the  wife,  that  if  the  purchaser  under  the  executions  be 
permitted  to  proceed  with  his  suit,  it  would  result  in  defeating  the  in- 
tention of  testator  as  to  his  widow,  by  depriving  her  of  the  home 
which  by  the  will  he  directed  she  should  enjoy  with  his  daughter  on 
the  premises  in  question,  cannot  avail  her  in  this  suit.     So  far  as  these 
considerations  establish  any  legal  right  in  the  widow,  they  are  avail- 
able only  in  her  behalf  and  at  her  instance.     The  complainant  cannot 
by  her  bill  enforce  the  legal  or  equitable  rights  of  another.  ib. 

10.  When  a  married  woman,  with  the  consent  of  her  husband,  contracted 
for  the  purchase  of  a  lot  of  land,  which  was  afterwards  conveyed  to 
the  husband,  who  paid  the  purchase  money  and  erected  a  house  on  the 
lot,  part  of  the  cost  of  which  was  paid  by  the  husband,  and  the  bal- 
ance was  secured  by  his  bond  and  mortgage  on  the  premises,  which 
was  afterwards  paid  by  the  wife  by  money  derived  from  her  own 
earnings — 

Held,  that  these  circumstances  fail  to  establish  any  resulting  trust  in 
the  wife,  or  show  any  interest  in  the  property  in  her,  paramount  to  the 
title  of  the  husb-ind.  Skillman  v.  Skillman,  478 


INDEX.  521 

11.  By  the  common  law,  the  earnings  of  the  wife  by  the  product  of  her 
skill  and  labor  belong  to  the  husband.    They  do  not  become  the  prop- 
erty of  the  wife,  even  in  equity,  without  a  clear,  express,  irrevocable 
gift,  or  some  distinct  affirmative  act  of  the  husband  divesting  himself 
of  them  or  setting  them  apart  for  her  separate  use.  ib. 

12.  An  injunction,  which  had  been  allowed  at  the  instance  of  the  wife,  to 
prevent  a  judgment  creditor  of  the  husband  from  satisfying  his  judg- 
ment out  of  the  land,  held  to  have  been  properly  dissolved.  ib. 

See  DIVORCE  ;  WILL,  58  to  62. 

INFANT. 

1.  It  is  only  when  a  minor  has  no  other  means  for  his  education  and 
maintenance  that  the  Orphans  Court  is  empowered  by  the  statute  to 
order  the  sale  of  his  lands.     Morris  v.  Morris,  239 

2.  Where  the  parent  is  of  sufficient  ability  to  maintain  and  educate  the 
infant,  as  a  general  rule,  the  lands  of  the  latter  should  not  be  sold  for 
that  purpose.  ib. 

3.  There  may  be  such  a  disparity  between  the  fortune  of  the  minor  and 
the  pecuniary  circumstances  of  the  father  as  would  make  it  proper 
that  the  fortune  of  the  child  should  contribute  to  his  own  support,  ib. 

4.  The  principle  which  should  govern  the  court  in  making  the  order 
should  be  the  same  as  has  been  adopted  in  chancery  in  like  cases,    ib. 

INJUNCTION. 

1.  When  an  injunction  is  applied  for  there  should  be  a  special  affidavit 
of  the  truth  of  all  the  material  facts  upon  which  the  application  is 
founded.     An  injunction  issued  upon  the  common  affidavit  in  the 
form  ordinarily  annexed  to  an  answer  will  be  dissolved  very  much  as 
a  matter  of  course.     Younyblood  v.  Schamp,  42 

2.  The  facts  need  not  be  proved  by  the  affidavit  of  the  complainant. 
When  the  material  facts  are  not  within  his  knowledge,  they  should  be 
verified  by  the  oath  or  affirmation  of  some  person  who  has  a  knowl- 
edge of  the  facts,  or  duly  verified  copies  of  private  instruments  or  of 
records  may  be  annexed  to  the  bill  when  such  is  the  appropriate  mode 
of  proof.  ib. 

3.  In  bills  charging  fraud,  and  praying  a  discovery,  or  in  any  case  where, 
in  the  nature  of  things,  positive  proof  cannot  be  expected,  the  addi- 
tional verification  may  be  dispensed  with,  and  the  injunction  may 
issue  on  the  affidavit  of  complainant  founded  on  belief  alone.  ib. 

4.  If  complainant  is  absent,  or  his  affidavit  for  any  reason  cannot  bo 
procured,  it  may  be  sworn  to  by  the  attorney  of  complainant  or  by 
any  person  acquainted  with  the  facts.  ib. 

5.  Where  the  bill  is  filed  by  a  corporation,  the  officer,  or  oilier  person 
who  has  the  principal  personal  knowledge  of  the  facts,  should  swear 

.     to  them.  ib. 

Bee  AGREEMENT,  1  to  7 ;  FRATTD,  2 ;  HIGHWAY,  6  to  11 ;  UUSBAIO)  AXD 
WIFE,  12;  MARSHALLING  OF  SECURITIES,  1  to  6  MISTAKE,  1  to  4; 
SALE  OK  LAND,  1. 


522  INDEX. 

INSANITY. 
See  WILL,  14,  15. 

INTEREST. 
See  ASSIGNMENT,  1  to  5 ;  USURY. 

INTERPLEADER. 
See  MECHANIC'S  LIEN,  1. 

JUDGMENT. 

1.  On  a  bill  to  foreclose  a  mortgage,  it  appeared  that  C.,  one  of  defend- 
ants, recovered  a  judgment  against  K.,  the  mortgagor,  on  the  23d  of 
January,  1858,  but  took  out  no  execution  thereon  until  June  25th, 
1862.     Complainant's  mortgage  was  recorded  on  the  2Gth  of  Decem- 
ber, 1839,  and  in  June,  1861,  several  other  judgments  were  recovered 
against  the  mortgagor,  on  which  executions  were  promptly  taken  out 
and  levied  on  the  mortgaged  premises.    On  a  dispute  about  the  priority 
of  these  several  encumbrances,  it  was  held — 

That  C.,  by  neglecting  to  issue  an  execution  on  his  judgment  until 
after  executions  had  been  issued  on  the  junior  judgments,  had  lost  his 
priority,  not  only  over  the  younger  judgments,  but  also  over  the  com- 
plainant's mortgage,  which  was  entitled  to  priority  over  the  younger 
judgments.  The  history  of  the  legislation  of  this  state  regulating  the 
priority  of  executions  reviewed.  Clement  v.  Kaiijlm,  47 

2.  Although  the  statute  (Nix.  Dig.  724,  2  9,)  in  terms,  relates  merely  to 
the  title  which  a  purchaser  by  virtue  of  a  sheriff's  sale  under  an  exe- 
cution at  law  shall  acquire,  the  operation  of  it  cannot  be  limited  only 
to  the  case  of  a  sale  under  the  junior  judgment,  where  no  execution 
has  been  sued  out  upon  the  senior  judgment,  and  levied  on  the  land.    ib. 

3.  The  junior  judgment,  by  suing  out  and  levying  the  first  execution  upon 
the  land,  acquires  a  priority  of  lien,  which  cannot  be  affected  by  any 
execution  subsequently  issued,  nor  by  any  mode  in  which  the  land 
may  be  sold.    The  issue  of  the  execution  upon  the  junior  judgment, 
and  its  delivery,  duly  recorded,  to  the  sheriff  destroys  the  priority 
which  was  enjoyed  by  the  older  judgment,  and  traasfers  it  to  the  junior 
judgment.  ib. 

4.  Executions  against  real  estate  have  priority  according  to  the  time  of 
their  delivery,  duly  recorded,  to  the  sheriff,  irrespective  of  the  dates 
of  the  judgments.  ib. 

6.  The  same  result  which  would  follow  from  a  sale  on  an  execution  is- 
sued on  the  junior  judgments  would  follow  a  sale  under  a  decree  of 
this  court.  The  order  of  the  encumbrances  cannot  be  changed  or  af- 
fected by  the  tribunal  out  of  which  the  execution  issues.  ib. 

JURISDICTION. 

1.  Complainants  and  defendants,  being  joint  owners  of  an  island  in  the 
Caribbean  sen,  said  to  contain  large  deposits  of  guano,  entered  into  an 
agreement  that  complainants  should  conduct  the  business  of  collecting 
and  selling  the  guano  for  the  mutual  benefit  of  all  concerned,  and  that 


o 


623 

the  profits  and  losses  of  the  business  should  be  divided  among  all  the 
parties  according  to  their  respective  interests,  and  that  complainants 
should  have  a  lien  on  the  island  and  all  the  personal  property  used  in 
their  business  for  any  advances  made  by  them.  The  business  generally 
proving  unprofitable,  the  complainants  filed  their  bill  against  the  de- 
fendants (who  are  citizens  of  this  state,  and  appeared  regularly  to  the 
suit,)  praying  an  account  and  a  decree  against  the  defendants  for  their 
proportion  of  the  losses,  and  for  a  sale  of  the  island,  its  contents,  and 
the  personal  property  connected  therewith — 

Held,  that  it  is  no  objection  to  the  court's  taking  an  account,  and  mak- 
ing a  decree  in  the  cause,  that  the  property  is  out  of  the  jurisdiction 
of  the  court,  so  that  the  decree  cannot  be  enforced  in  rem.  Wood  v. 
Warner,  81 

The  strict  primary  decree  of  a  court  of  equity  is  in  personam,  and  not 
in  rem,  and  the  authority  of  this  court  to  deal  with  contracts  in  re- 
lation to  land  not  within  the  jurisdiction  of  the  court  is  fully  estab- 
lished, ib. 
3.  The  contract  between  the  parties  and  the  circumstances  of  the  case 
held  to  be  such  as  to  entitle  the  complainants  to  close  their  operations, 
and  seek  an  account  and  settlement  in  this  court.  ib. 

See  APPEAL,  1,  2,  3,  15 ;  DIVORCE,  5,  6 ;  DOWER,  1  to  4 ;  EXECUTORS 
AND  ADMINISTRATORS,  1  to  6. 

MAKSHALLING  OF  SECUKITIES. 

t.  Complainant  and  defendant,  both  being  residents  of  the  city  of  New 
York,  were  both  creditors  of  the  firm  of  H.  S.  &  Sons,  also  doing  busi- 
ness in  New  York.  Both  had  presented  their  claims  and  obtained 
judgment  in  an  attachment  which  had  been  sued  out  against  the  firm 
in  this  state,  and  by  virtue  of  which  the  property  of  one  of  the  firm, 
situate  in  this  state,  had  been  attached,  but  not  sufficient  in  value  to 
satisfy  the  claims  of  all  the  applying  creditors  under  the  attachment. 
The  defendant  was  also  a  preferred  creditor  for  the  amount  of  his 
claim  under  an  assignment  executed  by  H.  S.  &  Sons,  in  the  city  of 
New  York,  by  virtue  of  which  the  assignee  held  assets  enough  to  sat- 
isfy the  claims  of  the  creditors  in  the  same  class  with  the  defendant, 
but  not  enough  to  pay  the  general  creditors,  of  whom  the  complainant 
was  one.  Defendant  also  held  other  collateral  securities  for  the  pay- 
ment of  the  same  debt.  On  a  bill  filed  by  the  complainant  to  restrain 
the  defendant  from  receiving  any  dividend  under  the  attachment  until 
he  had  first  exhausted  his  remedy  under  the  assignment,  and  had  re- 
sorted to  the  collateral  securities  held  by  him,  it  was  held — 
That  the  complainant  had  no  equity  to  justify  this  court  in  arresting 
the  proceedings  under  the  attachment, or  in  interfering  with  the  mode 
of  distribution  pointed  out  by  the  statute.  Benedict  v.  Benedict,  150 

2.  The  rule  of  equity  is  well  settled,  that  where  one  has  a  lien  upon  two 
funds,  and  another  a  subsequent  lien  upon  one  of  them  only,  the  for- 
mer will  be  compelled  first  to  exhaust  the  subject  of  his  exclusive 
lien,  and  will  be  permitted  to  resort  to  the  other  for  the  deficiencj 


624  INDEX. 

only.     But  the  equity  is  a  personal  one  against  the  debtor,  and  does 
not  bind  the  paramount  creditor  nor  the  debtor's  alienee  for  value,  ib. 

3.  It  is  an  equity  against  the  debtor  himself  that  the  accidental  resort  of 
the  paramount  creditor  to  the  doubly  charged  estate,  and  the  conse- 
quent exhaustion  of  that  security,  shall  not  enable  him  to  get  back 
the  second  estate  discharged  of  both  debts.  ib. 

4.  The  objection  to  throwing  the  claim  of  the  defendant  upon  the  assign- 
ment for  satisfaction  is,  that  it  cannot  be  done  without  prejudice  to  the 
claims  of  the  creditors,  who  are  entitled  to  share  the  fund  under  the 
assignment.  ib. 

6.  The  statute  of  this  state  only  prohibits  preference  of  one  creditor  over 
another  in  a  general  assignment  for  the  benefit  of  creditors,  and  not  in 
any  other  form.  Every  debtor,  by  our  law,  has  a  right  to  prefer  one 
creditor  over  another,  by  mortgage,  by  judgment,  or  by  any  other 
mode  than  that  which  the  statute  prohibits,  and  such  preferences,  es- 
pecially when  made  in  favor  of  sureties  or  confidential  creditors,  are 
not  regarded  with  disfavor  or  treated  as  inequitable.  ib. 

6.  As  between  citizens  of  New  York,  where  preferences  by  assignment 
are  allowed  by  law,  no  distinction  can  be  made  between  the  equitable 
character  of  the  claims  under  the  attachment  and  under  the  assign- 
ment, ib. 
MECHANIC'S  LIEN. 

1.  On  a  bill  of  interpleader,  filed  by  the  complainants  against  several 
claimants  of  the  same  fund,  which  fund  consisted  of  a  debt  due  from 
complainants  to  a  contractor  on  a  building  contract,  and  the  object  of 
the  bill  was  tosctile  and  adjust  the  rights  of  theseveral  claimants,  who 
are  creditors  of  the  contractor,  and  who  presented  three  classes  of 
claims — 

1.  Those  which  are  for  labor  done  and  materials  furnished  in  the  erec- 
tion of  the  building,  and  for  which  the  creditor  proceeded  to  secure 
his  claim  by  demand  and  notice  under  the  third  section  of  the  me- 
chanic's hen  law. 

2.  Claims  of  the  same  character  for  which  the  contractor  drew  orders 
on  the  complainants,  and  which  were  presented  to  complainants,  but 
not  accepted. 

8.  Claims  for  debts  due  from  the  contractor  other  than  for  work  done 
and  materials  furnished  in  the  erection  of  the  building,  and  for  which 
the  debtor  drew  orders  upon  complainants,  which  were  presented,  but 
not  accepted — 

Held,  that  the  first  class  of  claimants  must  be  paid  in  the  order  and 
priority  in  which  notice  of  the  demand  and  refusal  was  given  to  the 
complainants.  This  is  clearly  in  accordance  with  the  provisions  of 
the  third  section  of  the  lien  law,  which  gives  to  each  claimant  a  lien 
on  the  amount  due  from  the  owner  to  the  contractor  at  the  date  of  the 
notice;  and  it  would  seem  necessarily  to  give  priority  to  each  claim- 
ant in  the  order  of  time  in  which  his  notice  is  served,  and  excludes 
the  idea  of  a  pro  rata  division  of  the  fund  among  the  claimants.  Su- 
perintendent and  Tnislees  of  Public  Schools  in  Trenton  v.  Ilealh,  22 


INDEX.  525 

2.  Claims  of  the  second  class  have  no  claim  on  the  fund  under  the  pro- 
visions of  the  third  section  of  the  lien  law.     The  statutory  remedy 
must  be  strictly  pursued.     The  statute  alters  the  existing  law  only  so 
far  as  its  terms  require.    It  cannot  be  extended  by  construction.    The 
second  and  third  class  of  claims  are  undistinguishable  in  principle, 
and  stand  on  the  same  legal  footing.  ib. 

3.  The  orders  drawn  by  the  contractor  upon  the  fund  in  the  hands  of  the 
complainants,  and   presented  to  them,  though  not  accepted,  consti- 
tuted an  equitable  assignment  pro  tanto  of  the  fund,  which  will  fix  the 
fund  in  the  hands  of  the  debtor,  and  will  be  protected  and  enforced  in 
a  court  of  equity.  ib. 

4.  Most  American  courts  maintain  the  doctrine,  that  a  valid  assignment 
cannot  be  made  a  part  of  a  debt  without  the  assent  of  the  debtor, 
which  will  be  enforced  against  him  in  a  court  of  law.  But  it  has  no 
application  to  an  equitable  assignment  sought  to  be  enforced  in  a 
court  of  equity,  as  against  the  fund  in  the  hands  of  the  debtor  upon 
whom  the  order  is  drawn.  ib. 

5.  When  the  debtor  has  come  voluntarily  into  a  court  of  equity,  with  the 
fund,  and  leaves  the  claims  of  the  contesting  parties  to  be  settled  be- 
tween themselves,  it  does  not  lie  in  the  mouth  of  either  of  the  claim- 
ants to  raise  the  objection  against  the  assignment  of  part  only  of  the 
debt.     The  presumption  must  be  that  the  complainants  assented  to  a 
subdivision  of  the  debt.  ib. 

6.  All  the  claimants,  as  well  those  whose  debts  were  not  on  account  of 
the  building  as  those  whose  debts  were  contracted  in  the  erection  of 
the  building,  are  entitled  to  be  paid  out  of  the  fund,  according  to  the 
priority  of  their  respective  orders  and  notices.  ib. 

7.  The  parties  who  have  made  demand  and  given  notice  under  the  stat- 
ute are  entitled   to  no  priority.     The  statute  confers   on  mechanics 
and  material  men  no  exclusive  or  superior  right  to  the  fund  in  the 
hands  of  the  owner.     Each  creditor  is  entitled  to  be  paid  in  the  order 
in  which  his  notice  or  order  was  presented  to  the  complainants.        ib. 

8.  In  a  dispute  between  a  mortgagee  and  lien  claimants,  as  to  the  priority 
of  their  respective  encumbrances  on  the  mortgaged  premises,  where  it 
was  objected  to  the  validity  of  the  lien  that  the  building  was  not 
erected  by  the  owner  of  the  land,  nor  by  his  consent  expressed  in 
writing,  and  it  appeared  that,  pending  the  erection  of  the  building, 
the  owner  had  conveyed  away  the  land,  but  that  the  conveyance  was 
merely  as  collateral  security  for  the  payment  of  a  debt  due  to  the 
grantee,  that  the  deed  was  intended  simply  as  a  mortgage,  and  that  on 
satisfaction  of  the  debt  the  land  was  reconveyed — held,  that  these  cir- 
cumstances effectually  dispose  of  the  objection  urged  against  the  va- 
lidity of  the  lien.     Gordon  v.  Torrey,  112. 

9.  A  change  of  ownership  during  the  progress  of  the  building  does  not 
make  a  new  commencement  of  the  building,  nor  affect  the  validity  of 
the  lien  which  attached  at  the  commencement  of  the  building.        ib. 

10.  Nor  will  the  interruption  of  the  work  for  a  short  period,  and  its  sub- 
sequent resumption  without  a  change  of  its  original  design  and  char- 

VOL.  II.  2  K 


526  INDEX. 

acter,  constitute  a  new  commencement,  or  affect  the  attachment  of  the 
lien  when  the  building  was  originally  commenced.  ib. 

11.  The  proceeding  under  the  statute  to  enforce  the  lien  by  said  deed 
judgment  is  a  proceeding  in  rent.     It  does  not  create  the  lien  any  more 
than   a  proceeding  and  decree   for   the  foreclosure  of   a  mortgage. 
There  is  nothing  in  the  statute  which  requires  that  the  time  of  the 
commencement  of  the  building,  and  the  consequent  attaching  of  the 
lien  should  be  specified  either  in  the  lien  itself  or  in  the  record  of  the 
judgment.  ib. 

12.  It  is  no  objection  to  the  validity  of  the  liens  that  the  mortgagor  pro- 
cured them  to  be  filed,  or  that  he  concealed  their  existence  from  the 
mortgagee  at  the  time  of  obtaining  the  loan  for  which  the  mortgage 
was  given.     If  the  mortgagor  was  actuated  by  fraudulent  motives,  it 
cannot  affect  the  rights  of  the  lienholders.     The  validity  of  the  liens 
cannot  depend  upon  the  motives  which  suggested  their  being  filed,    ib. 

13.  In  a  bill  for  the  foreclosure  of  a  mortgage,  in  which  a.  question  arose 
between  the  complainants,  whose  mortgage  was  given  before  the  erec- 
tion of  a  building  on  the  land,  and  certain  lienholders,  who  had  liens 
for  the  erection  of  the  building,  as  to  the  proportions  in  which  they 
were  respectively  entitled  to  share  in  the  proceeds  of  sale  which  were 
insufficient  to  satisfy  all  the  claims,  it  was  held  that  the  only  safe  mode 
of  determining  the  relative  claims  of  the  respective  parties  will  be 
for  the  master  to  ascertain  the  fair  market  value  of  the  lot  and  build- 
ing, and  also  of  the  value  of  the  lot  as  it  stood  at  the  time  of  the 
mortgage,  clear  of  the  building,  both  valuations  having  relation,  as 
near  as  may  be,  to  the  time  of  sale.     Wldtehead's  Ex'rs  v.  First  Meth- 
odist Protestant  Church  of  Nevxirk,  135 

14.  The  mode  of  estimating  the  relative  values  of  the  land  and  building 
in  Whitenack  v.  Noe,  3  Stockton  330,  and  in  Newark  Lime  and  Cement 
Co.  v.  Morrison,  2  JBeasley  136,  criticised  and  disapproved.  ib. 

MISTAKE. 

1.  When  a  parcel  of  land  is  sold  under  a  decree  of  foreclosure,  and  is 
struck  off  and  conveyed  to  the  purchaser  under  an  erroneous  impres- 
sion that  the  mortgage  covers  the  entire  tract,  the  price  for  the  entire 
tract  being  bid  and  paid,  and  the  purchaser  put  into  possession,  and  it 
is  afterward  discovered  that,  from  a  mistake  in  the  description,  the 
mortgage  does  not  cover  the  entire  premises  intended  to  be  mortgaged, 
by  reason  whereof  the  legal  title  fails,  the  purchaser  is  entitled  to  be 
protected  in  the  peaceable  possession  of  the  land  purchased.     Waldron 
v.  Letson,  126 

2.  Had  an  application  been  made  on  behalf  of  the  mortgagee  to  reform 
the  mortgage  prior  to  the  date  of  foreclosure  there  could  have  been  no 
doubt  of  his  equitable  title  to  relief.     And  if  a  mistake  in  a  mortgage 
may  be  corrected,  it  is  just  anil  equitable  that  the  mortgagor  should 
abstain  from  availing  himself  of  tJ.e  mistake  to  the  prejudice  of  the 
purchaser.  ib. 

3.  It  is  not  gross  carelessness  in  a  purchaser  at  a  sheriff's  sale  not  to  know 


INDEX.  527 

that  a  description  in  a  sheriff's  deed  does  not  include  the  entire  prem- 
ises which  are  understood  to  be  offered  for  sale.  ib. 
4.  In  this  case  the  devisee  of  the  mortgagor  was  restrained  from  proceed- 
ing by  ejectment  to  recover  the  possession  of  that  part  of  the  prem- 
ises accidentally  omitted  from  the  mortgage,  and  was  decreed  to  re- 
lease the  same  to  the  purchaser.  ib. 

See  DEED,  1  to  3;  MORTGAGE,  10, 11 ;  ORPHANS  COURT,  3,  4;  PRACTICE, 
3;  WILL,  9  to  11. 

MONEY. 
See  WILL,  1,  2,  3. 

MORRIS  CASAL. 
See  HIGHWAY,  6  to  11. 

MORTGAGE. 

1.  In  a  suit  for  the  foreclosure  of  a  mortgage,  which  contained  an  agree- 
ment that  the  mortgagor  should  keep  the  buildings  insured,  and  as- 
sign the  policy  to  the  mortgagees,  and  in  default  of  so  doing  the  mort- 
gagees  might   effect  such   insurance,   and   that   the   premium   paid 
thereon  should  be  a  lien  on  the  mortgaged  premises,  and  added  to  the 
amount  secured  by  the  mortgage  and  payable  on  demand  with  inter- 
est, an  order  of  reference  was  made  to  a  master  to  take  an  account  of 
the  amount  due  to  complainants.     The  master  reported,  allowing,  in 
addition  to  the  amount  due  on  the  mortgage,  a  sum  of  money  due  for 
premiums  paid  by  the  mortgagees  on   effecting    insurances   on  the 
buildings. — On  exceptions  to  the  master's  report,  it  was  held,  that  the 
amount  so  allowed  for  insurance  was  not  within  the  cognizance  of  the 
master.    The  master's  authority,  as  to  the  subjects  and  extent  of  his 
examination  and  report,  is  limited  and  controlled  by  the  order  of  ref- 
erence.   Stoninyton  Savings  Sank  v.  Davis,  30 

2.  The  order  of  reference  in  this  case  is  in  the  usual  form,  directing  the 
master  to  take  an  account  of  the  amount  due  to  the  complainants  upon 
their  bond  and  mortgage.     The  sum  paid  for  insurance  is  no  part  of 
the  amount  due  on  the  bond  and  mortgage.  ib. 

3.  When  neither  the  complainants'  right  to  insure,  nor  the  fact  of  the  in- 
surance is  averred  in  the  bill,  and  no  relief  is  prayed  on  that  account, 
the  amount  paid  for  insurance  should  not  be  allowed,  although  by  a 
liberal  construction  of  the  order  of  reference,  it  might  be  deemed 
within  the  cognizance  of  the  master.  ib. 

4.  A  married  woman  purchased  a  farm,  which  was  encumbered  by  a 
mortgage,  which,  although  registered,  contained  an  important  proviso 
designed  to  secure  prompt  payment  of  the  interest,  which  proviso  was 
not  disclosed  by  the  registry  of  the  mortgage.    The  purchaser  took 
the  premises  subject  to  the  mortgage,  and  assumed  the  payment  of  it 
as  a  part  of  the  consideration  of  her  purpose.    On  a  bill  filed  to  fore- 
close the  mortgage,  in  which  the  purchaser  set  up  that  she  was  a  bona 
fide  purchaser  without  notice  of  the  proviso,  because  it  was  not  dis- 
closed by  the  registry,  it  was  fold — 


623  INDEX. 

That  it  was  totally  immaterial  whether  the  mortgage  was  registered  or 
not,  the  purchaser  had  actual  notice  of  the  Existence  of  the  mortgage. 
Smallwood  V.  Levrin,  60 

5.  That  the  covenant  by  a  married  woman  does  not  impose  any  obliga- 
tion upon  her  personally  is  immaterial ;  the  complainant  is  not  seek- 
ing to  enforce  the  obligation  as  against  her  personally,  but  to  have  the 
land  applied  to  the  satisfaction  of  the  debt  for  which  it  was  given,    ib. 

6.  The  general  doctrine  is,  that  whatever  puts  a  party  upon  an  inquiry 

amounts  in  judgment  of  law  to  notice,  provided  the  inquiry  becomes 
a  duty,  as  in  the  case  of  purchasers  and  creditors,  and  would  lead  to 
the  knowledge  of  the  requisite  fact  by  the  exercise  of  ordinary  dili- 
gence and  understanding.  So  notice  of  a  deed  is  notice  of  its  contents, 
and  notice  to  an  agent  is  notice  to  his  principal.  ib. 

7.  The  answer  of  defendants  denying  notice  will  avail  nothing  against 
this  clear  and  well  settled  principle,  charging  them  with  notice  of  the 
contents  of  the  mortgage.  ib. 

8.  The  object  of  the  laws  requiring  conveyances  to  be  recorded  is  to  pre- 
vent imposition  on  subsequent  purchasers  and  mortgagees  in  good 
faith  without  notice  of  the  prior  conveyance,  but  not  to  protect  them 
when  they  have  such  notice.    It  is  no  part  of  their  office  to  furnish 
information  of  the  contents  of  deeds  and  mortgages  of  which  the  sub- 
sequent purchaser  has  actual  notice.     A  defective  registry  cannot 
qualify  the  effect  of  actual  notice.  ib. 

9.  On  a  bill  filed  for  the  foreclosure  of  a  mortgage,  in  which  it  is  alleged 
that  the  mortgage  had  been  cancelled,  and  with  the  bond  had  been 
surrendered  to  the  defendant  by  mistake,  under  a  mistaken  apprehen- 
sion that  the  mortgage  debt  had  been  satisfied,  when  in  truth  it  had 
not — 

Held,  that  the  voluntary  cancellation  of  the  securities  by  the  holder  is 
a  very  strong  circumstance,  which  can  only  be  overcome  by  clear  evi- 
dence ;  but  that  the  evidence  in  this  case  shows  satisfactorily  that  the 
mortgage  has  never  been  paid.  Santa  v.  Vreeland,  103 

10.  Equity  will  relieve  where  an  instrument  has  been  delivered  up  or  can- 
celled through  fraud  or  mistake.  ib. 

1 1.  The  present  case  does  not  fall  within  the  principle,  that  to  entitle  the 
party  to  relief  on  the  ground  of  mistake,  it  must  be  of  such  a  fact  as 
lie  could  not  by  reasonable  diligence  have  obtained  knowledge  of.   ib. 

12   The  lien  of  the  writ  of  attachment  before  judgment  does  not  take  pri- 
ority over  a  previous  unregistered  mortgage.     Campion  v.  Kille,     476 

See  MECHANIC'S  LIEN,  8  to  14 ;  MISTAKE,  1  to  4 ;  SALE  OF  LANDS,  1,  2. 

NE  EXEAT. 

See  DIVORCE,  7. 

NOTICE. 

See  AssiGNMEirr,  1  to  5 ;  ERATO,  1  to  4 ;  MISTAKE,  1  to  4 ;  MORTGAGE, 
1  to  4 ;  SPECIFIC  PERFORMANCE,  1,  5. 


INDEX.  529 

OPINION  OF  WITNESSES. 
See  WILL,  12,  13. 

OKPHANS  COURT. 

1.  A  person  to  whom  property  is  struck  off  at  a  sale  made  by  commission- 
ers appointed  by  the  Orphans  Court  in  proceedings  for  partition,  ac- 
quires a  right  which  the  court  is  bound  to  protect.     Such  bidder  has 
a  right  to  have  a  deed  for  the  property,  unless  for  good  cause  the 
sale  be  set  aside.     Conover  v.  Waiting,  1G7 

2.  If  the  court,  without  good  cause,  set  aside  the  sale,  such  bidder  is  a 
party  aggrieved  by  an  order  of  the  Orphans  Court,  and  as  such  is  en- 
titled, by  the  constitution  of  this  state,  to  an  appeal  to  the  Prerogative 
Court.  ib. 

3.  The  Orphans  Court  cannot  open  the  final  account  of  executors  or  ad- 
ministrators except  for  fraud  or  mistake.     Stevenson  v.  Phillips,       236 

4.  Where  an  account  is  opened  to  correct  an  alleged  mistake  in  any  par- 
ticular item  or  items,  the  whole  account  is  not  thereby  thrown  open 
for  review.  ib. 

See  APPEAL  ;  ASSIGNMENT,  1  to  5  ;  DOWER,  1  to  4  ;  EXECUTORS  ANI>  AD- 
MINISTRATORS, 8  to  13 ;  INFANT,  1  to  4 ;  WILL,  4  to  8. 

PARENT  AND  CHILD. 

See  INFANTS,  1  to  4. 

PARTIES. 

1.  In  suits  brought  by  executors,  the  rule  in  equity  is,  that  only  the  ex- 
ecutors who  have  proved  the  will  must  be  parties.  An  executor  who 
has  renounced  need  not  be  joined  as  co-plaintiff.  Minehart's  Erfrs  v. 
Rinehart,  44 

See  HUSBAND  AND  WIFE,  1,  2,  9 ;  SPECIFIC  PERFORMANCE,  1,  2,  3. 

PARTITION. 

See  HUSBAND  AND  WIFE,  1  to  7. 
PRACTICE. 

1.  On  a  petition  by  a  defendant  that  a  decree  of  this  court,  in  all  respects 
regular,  be  opened,  and  that  he  be  admitted  to  answer,  alleging  sur- 
prise and  merits,  it  was  held — 

That  the  general  rule  is  that  a  decree  regularly  entered  and  enrolle  * 
cannot  be  altered  except  by  bill  of  revivor.  Carpenter  v.  Muchmore,  ll^f 

2.  Great  liberality  has  been  exercised  in  the  opening  and  correcting  of 
decrees  before  enrollment,  and  even  afterwards  (where  the  decree  has 
been  taken  pro  confesso),  for  the  purpose  of  rectifying  mistakes  appa- 
rent upon  the  face  of  the  proceedings,  or  where  there  is  a  clear  case 
of  surprise  and  merits. 

3.  When  the  only  allegation  of  surprise  is  that  the  defendant  is  unac- 
quainted with  the  proceedings  in  this  court  but  in  some  way  got  the 


530  INDEX. 

impression  that  he  would  have  until  the  first  day  of  the  present  term 
to  file  his  answer,  this  is  not  a  sufficient  case  of  surprise.  It  was  his 
duty  to  inquire  as  to  his  rights.  If  he  negligently  relied  on  his  mis- 
taken impression,  he  incurred  the  hazard  of  his  default  in  not  an- 
swering, ib. 
4.  The  petition,  though  sworn  to,  is  no  evidence  of  the  facts  contained  in 
it.  Its  truth  must  be  established  by  affidavits  and  other  evidence  taken 
according  to  the  rules  and  practice  of  the  court.  ib. 

See  APPEAL,  4  to  15;  ASSETS,  1,  2;  HUSBAND  AND  WIFE,  1,  2;  MORT- 
GAGE, 1  to  3 ;  PARTIES,  1. 

PREROGATIVE  COURT  CASES. 
PAGES  167  to  409. 
PRESUMPTION. 

See  PRESUMPTION  OP  DEATH  ;  WILL,  17. 
PRESUMPTION  OF  DEATH. 

1.  The  statute  (Nix.  Dig.  211,  $  4,)  which  raises  a  presumption  of  the 
death  of  a  person  absenting  himself  for  seven  years  without  being 
heard  from,  was  designed  to  furnish  a  legal  presumption  of  the  time  of 
the  deatli,  as  well  as  of  the  fact  of  the  death.     Executors  of  Clarke  v. 
Canfield,  119 

2.  In  the  absence  of  the  statute,  the  presumption  would  be  that  the  absent 
person  is  still  alive.     This  presumption  of  the  continuance  of  life  only 
ceases  when  it  is  overcome  by  the  countervailing  presumption  of  death 
afforded  by  the  statute,  which  is  not  until  the  end  of  seven  years,     ib. 

3.  The  presumption  of  death  which  arises  at  the  expiration  of  seven 
years  cannot  operate  restrospectively.  ib. 

PRINCIPAL  AND  AGENT. 
See  CORPORATION,  4  to  7 

SALE  OF  LAND. 

1.  When,  on  the  foreclosure  of  a  mortgage,  an  execution  had  been  issued 
which  by  mistake  directed  the  sale  of  land  not  included  in  complain- 
ant's mortgage,  nor  described  in  his  bill,  and  by  virtue  of  which  the 
sheriff  had  sold  such  land,  an  injunction  will  issue  to  restrain  the 
sheriff  from  delivering  the  deed.     Corles  v.  Lasldey,  116 

2.  On  a  sheriff's  sale  of  land  consisting  of  different  parcels,  the  general 
rule  is,  that  if  the  land  is  plainly  divisible,  it  should  be  sold  in  differ- 
ent parcels,  so  as  to  secure  the  highest  price.  ib. 

See  EXECUTORS  ASD  ADMINISTRATORS,  8  to  13 ;  FRAUD,  1  to  4 ;  INFANT, 
1  to  4 ;  MISTAKE,  1  to  4 ;  ORPHANS  COURT,  1,  2. 

SHERIFFS  SALE. 
See  SALE  OF  LAND. 


INDEX.  531 

SPECIFIC  PERFORMANCE. 

1.  On  a  bill  filed  by  the  heirs-at  law  of  a  deceased  vendee  by  parol  con- 
tract, against  a  purchaser  claiming  by  a  subsequent  deed  from  the  ven- 
dor, charging  such  purchaser  with  notice  of  the  parol  contract  of  sale, 
and  praying  a  decree  for  specific  performance  against  such  purchaser, 
it  was  held  that  the  administrator  of  the  vendee  was  a  necessary  party 
to  such  a  suit  where  the  personal  estate  was  small,  the  estate  still  un- 
settled, and  it  does  not  appear  that  the  debts  of  the  deceased  vendee 
have  been  paid.    Downing  v.  Risley.  93 

2.  The  administrator  is  not  only  liable  for  the  purchase  money,  and  in- 
terested in  disputing  the  contract,  but  he  has  an  equitable  interest  on 
behalf  of  creditors  in  the  real  estate  of  his  intestate,  paramount  to 
that  of  the  heirs.     All  persons  interested  in  the  contract  should  be 
made  parties  to  the  proceeding.  ib. 

3.  The  fact  that  the  heirs  are  also  bonafide  creditors  of  the  vendee,  how- 
ever it  may  strengthen  their  claim  to  equitable  relief,  cannot  aid  the 
defect  in  the  bill  for  want  of  parties.  ib. 

4.  The  defendant  did  not  take  his  title  directly  from  the  vendor,  but  from 
one  S.  P.  M.,  to  whom  the  vendor  made  title,  and  who  was  originally 
a  party  to  the  bill,  but  died  pending  the  suit.     It  appeared,  however, 
that  S.  P.  M.  was  a  mere  trustee  for  the  defendant.    Held  that  the 
conveyance  by  S.  P.  M.  to  the  defendant  was  a  mere  execution  of  the 
trust,  and  that  it  was  unnecessary  to  make  the  representatives  of  S.  P. 
M.  parties  to  the  suit.  ib. 

d.  There  is  no  difficulty  in  enforcing  the  specific  performance  of  the  con- 
tract against  the  alienee  of  the  vendor.  Where  the  alienee  has  notice 
of  the  original  contract  at  the  time  of  the  alienation,  he  is  liable  to  its 
performance  at  the  suit  of  the  vendee.  If  he  is  a  purchaser  with  no- 
tice, he  is  liable  to  the  same  equity,  stands  in  his  place,  and  is  bound 
to  do  that  which  the  person  he  represents  would  be  bound  to  do  by 
the  decree.  ib, 

See  EXECUTOES  AND  ADMINISTRATORS,  8  to  13. 
STATUTES. 

1.  Where  a  statute,  originally  one,  has  its  provisions  broken  up  by  a 
revision  of  the  law,  and  incorporated  in  two  different  acts,  the  con- 
struction of  these  provisions  cannot  be  affected  by  their  change  of  col- 
location. They  are  in  part  materia,  and  their  construction  must  be  the 
same  as  if  they  remained,  as  originally  enacted,  parts  of  the  same 
statute.  Clement  v.  Kaiyhn,  47 

See  APPEAL,  4  to  7  ;  ASSIGNMENT,  1  to  5 ;  DOWER,  1  to  4 ;  MARSHALING 
OP  SECURITIES,  5,  6 ;  MORTGAGE,  8 ;  PRESUMPTION  OF  DEATH,  1,  2,  3 : 

36,  37,  38. 

SURETY. 
See  MARSHALLING  OF  SECURITIES,  6. 

TESTAMENTARY  CAPACITY. 
See  WILL. 


532  INDEX. 

TRUST  AND  TRUSTEE. 

1.  It  is  a  well  established  doctrine  of  equity,  that  where,  upon  the  pur- 
chase of  real  estate,  the  title  is  taken  in  the  name  of  one  person,  and 
the  purchase  money  is  advanced  by  another,  the  parties  being  strangers 
to  each  other,  there  is  a  resulting  trust  in  favor  of  the  party  from 
whom  the  consideration  proceeds.     Ho/well  v.  Howell,  75 

2.  When  the  purchase  is  made,  and  the  money  advanced  by  a  father,  and 
the  title  taken  in  the  name  of  a  son,  the  purchase  would  be  deemed 
an  advancement;  but  when  the  purchase  is  made,  and  the  money  ad- 
vanced by  the  son,  and  the  title  taken  in  the  name  of  the  father,  the 
relation  of  the  parties  will  not  defeat  the  resulting  trust.  ib. 

3.  In  this  case  the  farm  was  purchased  by  two  sons,  for  their  own  use ; 
they  paid  all  the  purchase  money  that  they  could  raise,  and  in  order 
to  enable  them  to  pay  the  balance  their  father  mortgaged  his  own 
farm,  and  to  secure  himself  for  such  advance,  took  the  title  for  the 
farm  in  his  own  name.     During  the  lifetime  of  the  father  the  sons 
treated  the  mortgage  debt  as  their  own,  paid  the  interest  on  it,  and 
also  used  and  enjoyed  the  farm  purchased  as  their  own,  the  father  dis- 
claiming all  interest  in  or  control  over  it.    The  father- afterwards  died 
intestate  as  to  the  farm  so  purchased,  but  by  a  will,  made  before  the 
purchase,  he  devised  his  own  farm  to  the  two  sons,  charged  with  the 
payment  of  all  his  debts.    On  a  bill,  filed  by  the  two  sons  against  the 
other  heirs  of  their  father,  praying  that  the  farm  be  declared  to  be 
held  by  the  heirs  of  the  father  in  trust  for  the  two  sons,  it  was  held 
that  the  other  heirs  of  the  father  would  be  declared  trustees  for  the 
complainants,  and  they  were  decreed  to  convey  their  respective  in- 
terests to  them.  ib. 

4.  Although  ordinarily  the  trust  must  arise  at  the  time  of  the  making  of 
the  deed,  and  if  part  only  of  the  consideration  be  paid  at  the  time  by 
the  party  claiming  the  benefit  of  the  trust,  the  trust  results  in  his  favor 
only  to  that  amount,  although  he  subsequently  pays  the  whole  pur- 
chase money ;  yet  in  this  case  the  whole  purchase  money  must  be  re- 
garded as  paid  by  the  complainants,  and  the  transaction  between  the 
sons  and  the  father  must  be  regarded  as  a  loan  by  the  father  to  the 
sons  to  enable  them  to  make  the  purchase. 

See  HUSBAND  AND  WIFE,  12 ;  SPECIFIC  PERFORMANCE,  4. 

UNDUE  INFLUENCE. 
See  WILL,  27,  28. 

USURY. 

1.  Bill  on  a  mortgage — answer  usury — proof  that  the  contract  was  exe- 
cuted in  Pennsylvania. 

Held — That  the  proof  did  not  support  the  answer. 

2.  That  this  court  will  not  officially  recognize  the  usury  laws  of  other 
countries.     Campion  v.  Kille,  476 

3.  That  this  court  would  not  reverse  to  enable  the  defendant  to  amend 
his  pleadings  and  adduce  his  proof.  ib. 


INDEX.  633 

WILL. 

1.  On  a  bill  filed  to  settle  the  construction  of  a  will  containing  the  follow- 
ing residuary  clause,  viz.,  "  all  the  residue  and  remainder  of  my  moneys 
not  above  disposed  of,  that  is  of  moneys  which  1  have  at  the  time  of  my 
decease,  I  direct  to  be  equally  divided  among  my  children  and  grand- 
children living  at  the  time  of  my  decease ; " — "  whatever  personal  prop- 
erty is  not  herein  before  disposed  of  I  direct  to  be  sold  by  my  execu- 
tors, and  the  moneys  thereon  arising  to  be  divided  equally  between  my 
son  and  my  two  daughters,"  it  was  held  that,  by  these  two  clauses,  a 
clear  distinction  is  made  between  moneys  and  personal  property.    The 
residue  of  the  one  is  given  to   all  the  children  and  grandchildren 
equally  ;  what  remains  of  the  other  not  disposed  of  is  to  be  divided 
equally  between  the  children.    Beatty's  Ejc'r  v.  Lalor,  103 

2.  It  is  a  well  settled  rule  of  construction,  that  by  a  bequest  of  money, 
bonds,  mortgages,  promissory  notes,  or  other  securities  for  the  pay- 
ment of  money  will  not  pass,  unless  it  appears  by  the  will  or  from  the 
condition  and  circumstances  of  the  testator's  estate  that  it  was  her 
intention  to  pass  them.     The  term  money  must  be  understood,  in  its 
legal  or  popular  sense,  to  mean  gold  or  silver,  or  the  lawful  currency 
of  the  country,  or  bank  notes  or  money  deposited  in  bank  for  safe 
keeping.  ib. 

8.  The  bequest  of  money  in  this  case  does  not  include  funds  in  the  savings 
bank — that  is  in  the  nature  of  an  investment  drawing  interest,  and  is 
not  usually  subject  to  the  immediate  order  of  the  owner.  ib. 

4.  The  personal  property  of  a  testator  is  by  law  the  primary  fund  out  of 
which  the  debts  are  to  be  paid.     Winants  v.  Terhune,  185 

5.  Properly  nothing  is  the  personal  estate  of  the  testator  which  was  not 
so  at  his  death.  ib. 

6.  If  a  testator  directs  lands  to  be  sold  and  converted  into  money  to  pay 
his  debts,  the  proceeds  become  a  fund  which  is  liable  for  his  debts,   ib. 

7.  But  where  the  conversion  of  the  land  into  money  is  ordered  in  the 
will  for  a  specific  purpose,  as  if  the  direction  is  to  convert  the  estate  in 
order  to  give  a  legacy,  the  creditors  cannot  claim  the  money  as  per- 
sonal estate.  ib. 

8.  The  will  in  question  contained  the  following  clause :  "  I  also  order  my 
executors  to  sell  my  house  and  lot  at  Binghampton,  Broome  county, 
and  state  of  New  York,  as  soon  as  conveniently  can  be  after  my  de- 
cease, and  to  execute  lawful  deeds  for  the  same,  if  I  don't  dispose  of 
the  same  in  my  lifetime  ;  and  the  money  arising  therefrom  must  be 
paid  by  my  executors  towards  the  debt  of  my  son  Peter,  where  I  am. 
bound  as  surety  for  my  son  Peter ;   the  remainder  of  the  purchase 
money  of  the  house  and  lot,  if  any  there  should  be,  I  give  unto  my 
daughter-in-law  Charity  Ann,  the  wife  of  my  son  Peter."    The  exec- 
utors sold  the  premises,  and  there  was  a  remainder  after  paying  the 
debts  specified  ;  and  on  an  application  to  the  Orphans  Court  for  an 
order  to  sell  lands  on  a  deficiency  of  personal  property  to  pay  debts, 
that  court  refused  the  application  on.  the  ground  the  remainder  of  the 
proceeds  of  the  sale  of  the  Binghampton  property  was  personal  estate, 
and  must  be  applied  to  the  payment  of  the  several  debts — 


534  INDEX. 

Held,  in  the  Prerogative  Court,  reversing  this  decision  of  the  Orphans 
Court,  that  the  proceeds  of  the  sale  of  the  Binghampton  property 
could  only  be  regarded  as  personalty  for  the  specific  purposes  desig- 
nated in  the  will,  and  that  an  order  should  be  made  to  sell  lands  to 
pay  the  general  debts.  ib. 

9.  The  word  children  does  not,  ordinarily  and  properly  speaking,  com- 
prehend grandchildren,  or  issue  generally.  Their  being  included  in 
that  term  is  permitted  in  two  cases  only,  viz.,  from  necessity,  which 
occurs  when  the  will  would  remain  inoperative  unless  the  sense  of  the 
word  children  were  extended  beyond  its  natural  import,  and  where  the 
testator  has  clearly  shown,  by  other  words,  that  he  did  not  intend  to 
use  the  term  children  imits  proper  actual  meaning,  but  in  a  more  ex- 
tensive sense.  Brokaw  v.  Peterson,  194 

10.  Courts  of  probate  are  not  governed  by  the  same  strict  rules  as  a  court 
of  construction  in  reference  to  the  admission  of  parol  evidence.    There 
are  a  number  of  cases  where  mistakes  made  in  preparing  a  will  have 
been  corrected.  ib. 

11.  Decedent  made  a  will,  dated  14th  January,  1845.     He  had  then  living 
one  son,  seven  daughters,  and  four  grandchildren,  the  children  of  a 
deceased  son.    The  testator  gave  to  his  daughter,  Elizabeth,  a  certain 
portion  of  his  real  estate,  and  then  directed  his  executors  to  convert 
the  residue  of  both  real  and  personal  estate  into  money,  and  to  dis- 
tribute the  same.as  follows  :  To  his  son  Peter,  two  shares ;  to  each  of 
his  daughters,  with  the  exception  of  Elizabeth,  one  share ;  and  also 
one  share  to  his  four  grandchildren,  the  children  of  his  deceased  son 
Garret.     It  was  further  provided,  that  if  any  of  said  children  should 
die  previous  to  said  distribution,  the  share  of  such  child  so  dying 
should  go  to  his  or  her  children.     In  the  year  1850,  one  of  the  testa- 
tor's daughters  died,  leaving  a  son,  and  who,  under  the  .above  provis- 
ion of  the  will,  would  have  taken  the  share  of  his  mother.     The  tes- 
tator then,  in  1851,  made  a  second  will,  in  most  of  its  provisions  simi- 
lar to  the  former  one,  but  with  the  exception  that,  after  providing  for 
Elizabeth,  the  devise  is  made  to  his  three,  instead  of  four  daughters. 
This  will  then  also  provides  that,  in  case  of  the  death  of  any  of  his 
children,  the  share  of  such  child  shall  go  to  his  or  her  children. 
Under  this  will  it  was  clear  that  the  son  of  the  deceased  daughter 
would  not  take.     Evidence  was  offered  to  show  that  it  was  the  inten- 
tion of  the  testator,  by  his  last  will,  to  give  to  the  son  of  the  deceased 
daughter  the  share  which  would  have  come  to  him  by  force  of  the 
tormer  will.    Held,  that  as  there  was  no  ambiguity  on  the  face  of  the 
will,  as  there  was  no  fraud,  and  no  mistake  by  the  testator  as  to  any 
fact,  the  court  could  not  reform  the  will  so  as  to  make  it  correspond 
with  the  presumed  intentions  of  the  testator.  ib. 

12.  In  questions  of  testamentary  capacity  the  abstract  opinion  of  any  wit- 
ness, medical  or  of  any  other  profession,  is  not  of  any  importance.     No 
judicial  tribunal  would  be  justified  in  deciding  against  the  capacity  of 
a  testator  upon  the  mere  opinions  of  witnesses,  however  numerous  or 
respectable.    The  opinion  of  a  witness  must  be  brought  to  the  test  of 


INDEX.  635 

facts,  so  that  the  court  may  judge  what  estimate  the  opinion  is  entitled 
to.    Slar.khouse  v.  Norton,  202 

13.  Testamentary  capacity  is  to  be  ascertained  by  the  court  by  the  appli- 
cation of  certain  rules  of  law  in  the  exercise  of  a  sound  discretion 
regulated  by  these  rules.  ib. 

14.  A  monomaniac,   under  certain    circumstances,   may   make  a  valid 
will.  ib. 

15.  A  person  may  be  the  subject  of  a  partial  derangement  towards  a  par- 
ticular individual,  and  this  derangement  may  be  the  cause  of  depriving 
such  individual  of  the  bounty  of  a  testator,  and  yet  a  will  made  by 
such  person  may  be  valid  ;  the  court  will  not  refuse  probate  to  such 
will,  unless  by  doing  so  the  person  concerning  whom  the  delusion  ex- 
isted will  be  benefited.  ib. 

16.  Costs  to  be  allowed  in  matters  of  probate.  ib. 

17.  The  presumption  of  law  is  in  favor  of  testamentary  capacity,  and  he 
who  insists  on  the  contrary  has  the  burthen  of  proof,  except  where  in- 
sanity in  the  testator  has  been  shown  to  exist  at  a  time  previous  to  the 
execution  of  the  will ;  in  that  case  the  onus  is  shifted,  and  the  party  of- 
fering the  will  is  bound  to  show  that  it  was  executed  at  a  lucid  interval. 
Turner  v.  Cheesman,  243 

18.  The  time  of  the  execution  of  the  will  is  the  material  period  to  which 
the  court  must  look  to  ascertain  the  state  of  mind  of  the  testator ;  and 
although  it  is  competent  evidence  to  show  the  testator's  mind  at  any 
time  previous  or  subsequent  to  the  execution  of  the  will,  yet  such 
proof  is  always  liable  to  be  overcome,  if  it  be  satisfactorily  shown  that 
the  testator,  at  the  time  he  executed  the  writing,  had  the  possession  of 
his  faculties.  ib. 

19.  The  testamentary  witnesses  and  their  opinions,  and  the  facts  they 
state  as  occurring  at  the  time,  are  to  be  particularly  regarded  by  the 
court.  ib. 

20.  The  opinion  of  witnesses,  other  than  the  testamentary  witnesses,  as  to 
the  capacity  of  the  testator,  are  to  be  received  as  the  slip-litest  kind  of 
evidence,  except  so  far  as  they  are  based  on  facts  and  occurrences 
which  are  detailed  before  the  court.  ib. 

21.  Old  age,  failure  of  memory,  and  even  drunkenness,  do  not  of  them- 
selves necessarily  take  away  a  testator's  capacity ;  lie  may  be  ever  so 
aged,  very  infirm  in  body,  and  in  habits  of  intemperance,  and  yet,  in 
the  eye  of  the  law,  possess  that  sound  mind  necessary  to  a  disposition 
of  his  estate.  il>« 

22.  The  failure  of  memory  is  not  sufficient  to  create  testamentary  incapa- 
city unless  it  be  total,  or  extend  to  his  immediate  family  and  property. 
The  amount  of  mental  capacity  must  be  equal  to  the  subject  matter 
with  which  it  has  to  deal:  a  man  may  be  competent  to  make  a  codicil, 
changing  in  two  or  three  particulars  the  prior  dispositions  in  his  will, 
who  would  be  incompetent  to  the  performance  of  acts  requiring  the 
exercise  of  far  greater  intellect  and  judgment.  ib. 

23.  If  it  be  clear  that  the  writing  propounded  for  probate  is  the  will  of  a 
sound  and  disposing  mind,  the  court  cannot  look  beyond  it  for  the  tes- 


636  INDEX. 

tator's  motives  for  the  disposition  of  his  property  made  by  him.  The 
right  of  absolute  dominion,  which  every  man  has  over  his  own  prop- 
erty, is  sacred  and  inviolable — Per  POTTS,  Judge  of  Orphans  Court,  ib. 

24.  The  mere  fact  of  a  man's  having  affixed  his  signature  to  a  will  as  a 
subscribing  witness  does  not  entitle  his  opinion,  as  to  the  competency 
of  the  testator,  to  any  more  weight  than  that  of  any  one  else  who  may 
be  called  upon  to  testily.  ib. 

25.  If  the  subscribing  witness  is  a  stranger,  and  has  no  opportunity  to  as- 
certain and  judge  of  the  testator's  capacity,  his  opinion  is  not  entitled 
to  as  much  weight  as  that  of  a  friend  who  saw  the  testator  about  the 
same  time,  and  who  was  afforded  an  opportunity  of  conversing  with 
him,  and  testing  the  sanity  of  his  mind.  ib. 

26.  The  opinion  of  any  one — whether  a  subscribing  wUness  or  not—is  of 
but  little  value,  unless  he  can  give  the  reasons  for  Ihe  opinion  which 
he  expresses.  ib. 

27.  The  influence  exercised  over  a  testator,  which  the  law  regards  as  undue 
or  illegal,  must  be  such  as  to  destroy  his  free  agency ;  but  no  matter 
how  little  the  influence,  if  the  free  agency  is  destroyed  it  vitiates  the 
act  which  is  the  result  of  it.  ib. 

28.  That  degree  of  influence  which  deprives  a  testator  of  his  free  agency, 
which  is  such  as  he  is  too  weak  to  resist,  and  which  renders  the  instru- 
ment not  his  free  and  unconstrained  act,  will  be  sufficient  to  invali- 
date it,  not  in  relation  to  the  person  alone  by  whom  it  is  procured,  but 
as  to  all  others  who  are  intended  to  be  benefited  by  the  undue  influ- 
ence, ib. 

29.  On  a  question  of  testamentary  capacity,  evidence  of  the  opinions  of 
witnesses,  though  competent,  is  merely  preliminary  to  the  further  in- 
quiry of  the  facts  and  circumstances  upon  which  their  opinions  are 
formed.     Garrison  v.  Executors  of  Garrison,  260 

30.  It  is  not  the  opinion  of  the  witness  upon  which  the  court  relies,  but 
the  court  draws  its  own  conclusions  and  forms  its  own  judgment  from, 
the  premises  which  have  produced  the  conviction  in  the  mind  of  the 
witness.  ib. 

31.  The   mere  opinion  of  a  subscribing  witness  is  entitled  to  no  more 
weight  with  the  court  than  that  of  any  other  witness.  ib. 

32.  The  opinion  of  a  witness  who  is  a  stranger  to  the  testator,  and  who 
sees  or  hears  nothing  except  what  is  necessary  to  enable  him  to  attest 
the  instrument  as  a  subscribing  witness,  is  not  as  much  to  be  relied 
upon  as  that  of  a  neighbor  and  familiar  acquaintance  of  the  testator. 
The  opinion  of  neither  is  of  any  weight  with  the  court,  except  as  it 
proves  itself  to  be  a  correct  and  sound  conclusion  from  facts  which 
justify  and  warrant  it.  ib. 

33.  A  man  who  will  subscribe  an  instrument  attesting  that  the  testator  is 
of  sound  mind,  memory,  and  understanding,  and  then  repudiate  under 
oatli  his  own  attestation,  does  not  occupy  a  position  that  will  justify  a 
court  in  giving  any  weight  to  his  own  opinion.  ib. 

34.  A  will  can  be  cancelled  in  no  other  way  than  by  its  being  bnrned,  torn, 
or  obliterated  by  the  testator  himself,  or  in  his  presence  and  by  his 


INDEX.  537 

direction  and  consent,  or  by  a  revocation  in  writing,  executed  in  the 
same  manner  as  wills  are  required  to  be  executed.  Mundy  v.  Mundy,  290 

35.  A  testator  asked  his  wife  if  she  had  brought  his  will  from  its  place  of 
deposit  according  to  his  instructions,  and  at  the  same  time  informed 
her  that  he  wished  to  burn   it  up.    The  wife  replied  that  she  had 
burnt  it  up.     Held,  that  this  did  not  amount  to  a  revocation,  the  will 
not  having  been  burnt.  ib. 

36.  Under  the  statute  of  this  state,  passed  in  1814,  it  was  requisite  that 
the  witnesses  should  be  actually  present,  and  see  the  testator  sign  the 
will.     The  act  of  1851  makes  the  acknowledgment  of  his  signature  in 
the  presence  of  the  witnesses  sufficient.  ib. 

37.  There  is  no  argument  to  be  drawn  from  the  substitution  of  the  word 
"declared"  in  the  act  of  1851,  for  the  word  "published"  in  the  former 
act.     Whatever  would  amount  to  a  publication  would  answer  the  re- 
quirement, that  it  should  be  declared  to  be  the  testator's  will.  ib. 

38.  It  is  manifest  that  the  authors  of  the  act  of  1851  did  not  intend  to  af- 
fect any  wills  executed  in  compliance  with  the  requirements  of  the 
old  act.  ib. 

39.  The  attestation  clause  to  a  will  is  prima  facie  evidence  of  the  facts 
stated  in  it ;  and  the  instrument  will  not  be  rejected  because  the  wit- 
nesses fail  to  remember  the  mode  of  its  execution.  ib. 

40.  If  there  is  no  attestation  clause,  there  must  be  affirmative  proof  of  the 
publication  by  the  testator  and  of  the  other  requisites.  ib. 

41.  There  must  be  some  declaration  by  the  testator  that  it  is  his  will,  and 
a  communication  by  him  to  the  witnesses  that  he  desires  them  to  attest 
it  as  such.    But  this  need  not  be  by  word  :  any  act  or  sign  by  which 
that  communication  can  be  made  is  enough.  ib. 

42.  Where  a  caveat  is  filed  against  proving  a  will  by  a  person  who  claims 
to  be  attorney  in  fact  for  legatees  under  a  former  will,  who,  if  living 
at  all,  live  in  a  distant  state  of  the  Union,  and  .no  power  of  attorney 
is  produced  from  such  legatees — held  that  the  fair  presumption  was, 
under  the  circumstances  of  this  case,  that  no  power  of  attorney  was  in 
existence,  and  that  it  was  the  duty  of  those  opposing  this  will  on  be- 
half of  such  legatees  to  give  some  evidence  of  their  being  still  alive, 
and  of  the  authority  to  appear  for  them,  if  they  wish  to  attack  the 
present  will  because  of  their  not  being  mentioned  in  or  provided  for 
in  it.    Pancoast  v.  Graham, 

43.  The  evidence  in  this  case  carefully  examined,  and  the  will  admitted 
to  probate  against  a  very  strong  array  of  medical  and  other  testimony 
against  the  sanity  of  the  testator.  ib. 

44.  The  testimony  of  the  attesting  witnesses,  as  to  the  sanity  of  testator, 

held  to  be  strengthened  by  the  facts  that  the  will  is  a  reasonable  one 
on  the  face  of  it,  and  that  its  contents  correspond  with  the  repeated 
declarations  of  the  testator. 

45.  The  consideration  is  entitled  to  some  weight,  that  by  the  will  under 
consideration  the  property  is  mostly  given  to  the  heirs-at-law  and  next 
of  kin  of  the  testator,  who  are  satisfied  with  the  will  as  it  stands.    The 
caveators,  if  they  claim  as  devisees  or  legatees  under  a  former  will. 


038  INDEX. 

should  have  it  propounded  it  for  probate.  Not  having  done  this,  the 
presumption  is  that,  if  this  will  is  not  established,  the  decedent  died 
intestate,  and  such  being  the  case,  the  property  would  go  to  the  very 
persons  to  whom  it  is  given  by  the  present  will,  and  the  caveators 
would  derive  no  benefit  from  defeating  it.  ib. 

46.  When,  in  a  controversy  about  the  probate  of  a  bill,  it  was  alleged  that 
the  paper  offered  for  probate  was  not  a  genuine  will,  but  that  it  was 
surreptitious  or  procured,  and  was  never  executed  by  testator  as  his 
will,  it  was  held  that,  in  that  aspect  of  the  case,  it  was  competent  for 
the  caveators  to  show  that  the  provisions  of  the  will  in  controversy 
were  contrary  to  the  expressed  intentions,  views  and  feelings  of  the 
deceased  before  the  time  it  bears  date,  and  to  his  declarations  subse- 
quently made.     Boylan  v.  Meeker,  310 

47.  The  will  offered  for  probate  held,  after  an  elaborate  review  of  the  evi- 
dence, to  have  been  fraudulent  and  surreptitious,  and  not  executed  by 
the  testator.  ib. 

48.  The  costs  and  counsel  fees  of  the  party  offering  the  will  for  probate 
were  ordered  to  be  paid  out  of  the  estate,  because  of  the  absence  of 
direct  proof  of  fraud  on  the  part  of  the  party  offering  it,  or  of  knowl- 
edge on  his  part  that  it  was  surreptitious,  although  he  was  a  large 
beneficiary  under  it.  ib. 

49.  A  testator  made  a  will  in  1850,  a  codicil  thereto  in  1854,  and  a  subse- 
quent will  in  1858,  by  which  he  bequeathed  and  disposed  of  all  his 
real  and  personal  estate  without  exception,  and  which  contained  a 
clause,  "  hereby  revoking  all  former  wills,  and  declaring  this  to  be  my 
last  will  and  testament."     After  the  last  will  had  been  admitted  to 
probate,  on  an  application  to  admit  to  probate  the  codicil  of  1854,  it 
was  held  that  the  last  will  contains  both  an  implied  and  express  revo- 
cation of  the  codicil.    The  revocation  extends  to  all  prior  testamen- 
tary dispositions  of  testator's  estate,  real  and  personal.    Smith  v.  Mc~ 
Chesney,  359 

50.  It  is  principle  as  ancient  as  it  is  familiar,  that  no  man  can  have  two 
wills.     The  last  will  is  of  necessity  a  revocation  of  all  former  wills, 
so  far  as  it  is  inconsistent  with  them.     So  if  one  having  made  his 
will,  afterwards  make  another  will  inconsistent  therewith,  but  not  ex- 
pressly revoking  it,  this  will  nevertheless  be  a  revocation.  ib. 

51.  This  implied  revocation  is  effected  only  when  the  last  will  is  incon- 
sistent with  the  former ;  for  it  may  be  a  will  of  different  goods,  or  dif- 
ferent pieces  of  land,  so  that  the  two  may  be  taken  conjointly  as  the 
will  of  the  testator.  ib. 

52.  If  the  latter  will  contain  an  express  revocation  of  the  former,  it  is  im- 
material whether  the  latter  be  or  be  not  inconsistent  with  the  former, 
or  whether  it  operates  as  a  will  at  all  or  not.  ib. 

53.  It  is  undoubtedly  true  that  the  revocatory  clause  is  not  always  imper- 
ative, and  that  its  effect  depends  upon  the  intention  of  the  testator ; 
but  that  intention  must  in  every  case  be  gathered  from  the  contents  of 
the  instruments  themselves.     Parol  testimony  is  inadmissible  for  this 
purpose.    It  is  never  admissible  to  contradict  by  parol  the  terms  of  a 
will,  or  to  overturn  its  plain  provisions.  ib. 


INDEX.  639 

64.  What  constitutes  undue  influence  can  never  be  precisely  defined.  It 
must  necessarily  depend  in  each  case  upon  the  means  of  coercion  or 
influence  possessed  by  one  party  over  the  other.  Whatever  destroys 
the  free  agency  of  the  testator  constitutes  undue. influence.  It  is  im- 
material whether  that  object  be  effected  by  physical  force  or  mental 
coercion,  by  threats  which  occasion  fear,  or  by  importunity  which  the 
testator  is  too  weak  to  resist,  or  which  extorts  compliance  in  the  hope 
of  peace.  Executors  of  Moore  v.  Blauvelt,  367 

05.  Threats  of  personal  estrangement  and  non-intercourse,  addressed  by  a 
child  to  a  dependent  parent,  or  threats  of  litigation  between  the  chil- 
dren to  influence  a  testamentary  disposition  of  property  by  the  parent, 
constitute  undue  influence.  ib. 

66.  The  fact  that  a  testator  has  been  induced  to  make  a  new  will  by  false 
representations  as  to  the  contents  of  an  existing  will,  is  a  proper  ele- 
ment in  the  consideration  of  the  question  of  undue  influence,  although 
the  new  will  may  not  materially  vary  from  the  former  one  in  respect 
to  the  subject  matter  of  the  false  representations.  ib. 

67.  Testimony  On  a  question  of  undue  influence,  which  is  but  matter  of 
opinion,  is  entitled  to  consideration  only  so. far  as  it  is  sustained  by 
facts.  ib. 

58.  A  married  woman  is  incapable  of  devising  real  estate.    She  is  also  in- 
capable of  disposing  of  her  chattels  by  will  without  the  consent  of  her 
husband.     Such  a  will  being  a  mere  nullity,  will  not  be  admitted  to 
probate.     Van  Winkle  \.  Schoonmaker,  384 

59.  The  wife  may,  with  the  consent  of  her  husband,  make  a  valid  will  of 
her  personal  estate,  and  such  consent  may  be  by  parol ;  it  may  be  ex- 
press or  implied,  and  may  be  before  or  after  the  death  of  the  wife.  ib. 

60.  The  consent  of  the  husband  is  not  obligatory,  but  is  revocable  at  his 
pleasure  at  any  time  before  probate  granted.     It  is  nothing  more  nor 
less  than  a  consent  that  the  will  be  admitted  to  probate.    If  that  is 
revoked,  probate  cannot  be  granted.  ib. 

61.  If,  in  consequence  of  the  husband's  assent,  rights  are  acquired  by  other 
parties  to  property  disposed  of  by  the  will,  it  seems  that  in  such  case 
he  would  not  be  permitted  to  retract  his  assent  and  oppose  the  pro- 
bate, ib. 

62.  Where  a  married  woman  made  a  will  with  the  consent,  and  in  part 
by  the  procurement  of  the  husband,  and  after  the  death  of  the  wife, 
a  day  was  fixed  for  the  reading  of  the  will  by  the  husband  at  his 
house,  and  notice  given  thereof  to  the  heirs  of  the  wife  by  the  hus- 
band, who  also  knew  of  the  will  being  taken  to  the  surrogate's  office 
for  probate,  and  made  no  objection  to  it.     The  husband  afterwards 
withdrew  his  consent,  and  filed  a  caveat  against  admitting  the  will  to 
probate.    The  Orphans  Court  having  admitted  the  will  to  probate,  the 
decree  of  the  Orphans  Court  was  reversed.  ib. 

63.  A  testator,  by  his  will,  bequeaths  to  his  wife  specifically  all  that  por- 
tion of  his  personal  estate  commonly  known  as  goods  and  chattels, 
such  as  plate,  furniture,  horses,  carriages,  &c.,  and  immediately  after 
gives  and  devises  "  all  the  rest  and  residue  of  my  real  and  personal  es- 


540  INDEX. 

tate"  unto  certain  persons  in  trust  for  various  uses  and  purposes, 
among  which  are,  to  give  to  each  of  five  legatees  named  two  hundred 
and  fifty  shares  of  certain  stock  which  testator  had  at  the  making  of 
his  will  and  at  the  time  of  bis  deatli.  And  the  question  being  which 
of  the  bequests  of  the  shares  of  stock  were  specific  or  general  bequests 
—it  was  field 

That  it  seems  to  be  conceded  that  if  a  testator  bequeaths  to  a  person  a 
certain  number  of  cows  or  sheep  or  shares  of  stock,  it  is  a  general 
legacy ;  but  if  he  add  the  word  my  cows,  my  sheep,  or  my  shares  of 
stock,  it  is  a  specific  legacy,  although  in  both  cases  he  may  be,  at  the 
time  of  making  the  will,  and  thence  to  his  death,  the  owner  of  the 
number  of  the  cows,  sheep,  or  shares  mentioned  in  the  will.  Norria 
v.  Executors  of  John  R.  Thomson,  493 

64.  In  this  case  the  testator,  having  otherwise  disposed  of  all  his  personal 
property  except  the  stocks  and  bonds,  concerning  which  this  question 
arises,  and  there  being  no  other  personal  estate  but  his  stocks  and 
bonds  on  which  the  residuary  bequest  could  operate,  his  describing 
such  residue  as  "  my  personal  estate  "  is  equivalent  to  saying  my  stocks 
or  my  bonds,  and  makes  the  legacies  specific,  and  not  general.  ib. 


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